Orissa High Court
State Of Orissa And Dayanidhi Bisoi vs Dayanidhi Bisoi And State Of Orissa on 23 September, 2002
Equivalent citations: 2003CRILJ123, 2002(II)OLR495
Author: M. Papanna
Bench: B.P. Das, M. Papanna
JUDGMENT M. Papanna, J.
1. This is a Death Reference under Section 366 of the Code of Criminal Procedure made by the learned Additional Sessions Judge, Koraput (Jeypore), who on conclusion of trial in Sessions Case No. 8 of 1999 convicted the accused under Sections 302/392 of the Indian Penal Code and imposed on him an extreme penalty of death and sought for confirmation of the death sentence against him. The accused challenged the impugned conviction and sentence by preferring an appeal from jail. The Death Reference as well as the Jail Criminal Appeal having given rise to common questions of fact and law, were heard analogously and are being disposed of by this common judgment.
2. Prosecution case is that Anirudha Sahu, a Peon of Sales Tax Department along with his wife and daughter, was residing in Flat No. DCF-F/79 in the Irrigation Colony at Jeypore at the material time. The accused is of village Niranguda. He happens to be the agnetic nephew of the deceased Anirudha. He was carrying on turmeric and mustard business. He had visiting terms to the house of the deceased. It is alleged that he had gone to the house of the deceased and stayed there during night of 3/4.6.1998. During the said night, he committed the murder of the deceased Anirudha, his wife and their daughter by stabbing on their necks by means of a knife while they were in their slumber. He robbed them of their cash, gold ornaments, wrist watch etc. The accused left the house of the deceased in the following morning, after Babu Lenka (P.W.1), a neighbour opened the grill gate at early hours of the said morning. At that time, a Pan shop owner (P.W.2) saw the accused going from the direction of the house of the deceased. After finishing his morning walk, Babu Lenka (P.W.1) returned home in the said morning. He again went to the market and came back at about 11 a.m. He was surprised to see that none of the family members of the deceased including their little daughter Puja was coming out from their house and going to his house as usual. Out of curiosity his brother Kanhu and his friend Lingaraj climbed a guava tree and found the lights in the house of the deceased burning and fans on. All of them broke open the lock of their door. They were surprised to see Anirudha, his wife and their little daughter lying dead inside their house with bleeding injuries on their necks. Gold ornaments from the neck of Lata were found missing. Their almirah was opened and all their household articles were ransacked. At that juncture, the guest, who had come to the house of the deceased during the fateful night of the occurrence was missing, so he was suspected to have robbed them of their valuables by murdering them. Jeypore Town P. S. Case No. 148 of 1998 was registered on the F.I.R. (Ext.1) lodged by P.W. 1. Ext.1 discloses that during night of 3/4.6.1998 around 9 P.M.. Lata, wife of Anirudha had come to the house of Babu Lenka as usual. At that time, her daughter was playing there. When Lata was going back she called her daughter. Then when his mother asked Lata to stay for a while, she replied that a guest from the village had come to their house and she would serve him food. So saying she left for her house along with her daughter, Puja. During investigation, the Investigating Officer visited the spot, examined the witnesses, held inquest over the deadbodies of the deceased persons, sent the same for autopsy, made seizure of incriminating articles, arrested the accused, who while in police custody made disclosure statement leading to discovery of weapon of offence, a wrist watch, cash and gold ornaments of deceased Lata and Puja. On conclusion of investigation of the case, the Investigating Officer laid Charge Sheet against the accused.
3. Plea of the accused is that he is innocent of the allegations fastened to him. In his statement under Section 313 of the Code of Criminal Procedure he has admitted that Police seized money and ornaments during investigation of the case. But his stand is that the seized money belongs to his sister while the seized ornaments are of his wife. He has also stated that Police roped him falsely in this case.
4. Evidence of as many as twenty-five witnesses is pressed into service by the Prosecution to substantiate the charges against the accused. P.W. 1 is Babu Lenka (informant). P.W. 2 is Goutam Kumar Swain. He is a owner of a Betel Shop in the Irrigation Colony. He saw the deceased Anirudha in the Company of the accused around 9 P.M. during the night of occurrence. According to him, accused and the deceased had gone to his Pan shop and purchased,, "Sachetesh Khaini". He saw the accused going from the direction of the house of the deceased in the following morning. P.W.3 is Tamala Lenka, mother of P.W. 1. She had ascertained from deceased Lata regarding visit of a guest to her house during the night of occurrence, P.W.4 is Biswambar Gamango. He turned hostile towards the prosecution case by resiling from his earlier version made to the 1.0. P.W.5 is Trailokya Bisoi, a common relation of the accused and the deceased Anirudha. P.W.6 is Nilanchal Bisoi. He is also their common relation, P.W. 7 is Prem Chandra Sahoo, a common relation of the accused as well as the deceased, P.W.8 is Puspalata Mohanty, who is a neighbour of the deceased. P.W.9 is Kanhu Charan Lenka, brother of P.W.1. He went to the upstair by climbing a Guava tree and saw the deceased persons lying dead in their house. P.W.10 is Narayan Bisoi, a common relation of the accused and also the deceased. P.W. 11 is Akaya Kumar Pradhan, an inquest witness. PW.12 is K. Gouri Shankar Rao, a co-villager of the accused. P.W.13 is Ghanashyam Bisoi, elder brother of deceased Lata. P.W. 14 is Ramanarayan Das, a Police Constable, who guarded the deadbodies of the deceased and escorted the same for post-mortem examination. P.W.15 is Bidyadhar Sahu, elder brother of deceased Anirudha. P.W.6 is the J.M.F.C., who conducted T. I. Parrade in respect of the suspect and also the Material Objects. P.W.17 is T. Keshab Rao Acharya, who assisted the accused in selling the ornaments to a Goldsmith. P.W.18 is the I.O. who submitted Charge Sheet in this case. P.W.19 is T. Rama Rao, a Goldsmith, who purchased gold ornaments from the accused. P.W.20 is Dr. Umesh Chandra Patnaik, who conducted autopsy over the deadbodies of the accused persons. P.W.21 is Goura Chandra Bisoi, a relation of the 'deceased. P.W. 22 is Ram Mohan Uttarkabat, who initiated investigation of the case. P.W.23 is Dr. Kishore Nath Choudhury who collected nail clippings from the accused. P.W.24 is Sudhir Bisoi S.l. of Finger Prints and a member of the Scientific Team, who collected incriminating materials and P.W. 25 is Kailash Chandra Mohapatra, Assistant Photographer and a member of the Scientific Team.
5. The defence, on the other hand, declined to examine any witness in support of the stand taken by the accused during trial.
6. The learned trial Judge relying on the evidence of the witnesses convicted the accused under Sections 302 and 392 of the Indian Penal Code. He sentenced him to death subject to confirmation by this Court. However, no separate sentence was awarded against him under Section 392 of the Indian Penal Code.
7. The learned counsel Mr. Chinnari Ananda Rao for the condemned person assailed the judgment impugned before us on several grounds. He urged that this is not a fit case for confirmation of the death sentence imposed, on the appellant as the prosecution failed in establishing the charges beyond all reasonable doubt. He persuaded us for acquittal of the appellant of the charges.
8. Shri Pradipta Kumar Mohanty, learned Addl. Government Advocate who supported the judgment of the learned trial Judge urged that the chain of link in the circumstantial evidence relied upon by the prosecution having been complete leading to the only hypothesis that the accused is the real author of the crime of brutal, gruesome calculated and above all cruel murder of all the family members of Anirudha for gratifying his greediness while taking shelter in their house during the night and thereby abusing their confidence and trust reposed in him by them, he cannot escape the extreme penalty of death imposed on him by the learned trial Judge.
9. Admittedly, direct evidence having been not available for the prosecution to substantiate the charges against the accused, it hinges entirely on circumstantial evidence which can be categorised as below:
(i) Medical evidence of P.W.20 justifying that deaths of deceased persons are homicidal in nature;
(ii) Motive of the accused for committing the crime;
(iii) Accused was in dire need of money for his turmeric and mustard business at the material time;
(iv) During the night of the occurrence, the accused was very well present in the house of the deceased. In the said night he was not present in his own house at his native village, Niranguda;
(v) Accused had visiting terms to the house of the deceased Anirudha as he had weakness for deceased Lata;
(vi) Accused was last seen in the company of the deceased by the witnesses;
(vii) Accused was going from the direction of the house of the deceased in the following morning of the night of occurrence and he was correctly identified by the witnesses during T.I. parade;
(viii) Accused sold gold ornaments of deceased Lata and Puja to P.W.19 and the same were correctly identified by witnesses during T.I. parade;
(ix) On the information of the accused, the I.O. recovered the weapon of offence (knife), gold ornaments, wrist watch and cash belonging to the deceased;
(x) The nail clippings collected from the accused were found to be stained with blood; and
(xi) Matching of blood stained finger prints and chance finger prints found from the scene of occurrence with subsequent finger prints of the accused.
10. The Apex Court has laid down the law relating to proper appreciation and acceptance of circumstantial evidence on which the prosecution case hinges in the absence of direct evidence for proof of the charges. The well established position of law is that when the prosecution case is based entirely on circumstantial evidence it must be fully established and the chain of evidence furnished to those circumstances must be so complete as not to leave any reasonable doubt for a conclusion consistent with innocence of the accused and the said circumstances from which conclusion of guilt is to be inferred are not only to be fully established, but also they should be of conclusive in nature so as to be consistent with the only hypothesis of guilt of the wrong doer and above all should not be capable of being explained by any other hypothesis except his guilt and all the circumstances cumulatively taken together should lead to irresistible conclusion pointing only to the accused as perpetrator of the crime. Here, while appreciating the circumstantial evidence, the Court has to be very carefur bearing in mind the guidelines of the Apex Court given in the case of Shankarlal Dyarasilat Dixit v. State of Maharastra reported in AIR. 1981 SC 765. The Supreme Court has viewed in the above case that human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions, so what we emphasis is that between "may be true" and "must be true" there seems to be a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before the accused is condemned as a convict in the present case.
11. Here is another decision of the Supreme Court reported in AIR 1991 SC 1388 (Jaharlal Dash Vrs.-State of Orissa) on the subject .We quote the law thus :
"*** *** *** *** It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions :
(i) the circumstances from which an inference of guilt is sought to be drawn must be congently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) the circumstances, taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
12. In a case where prosecution depends largely upon circumstantial evidence, the Court has to bear in mind the caution given by the Apex Court regarding the danger that most often there is likelihood that conjecture or suspicion may take the place of legal proof but such suspicion, however, so strong cannot be allowed to take the place of proof, The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various instances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. This caution has been given by the Apex Court in the leading case of Hanumant v. State of Madhya Pradesh reported in 1952 SCR 1091 ; (AIR 1952 SC 343). We have to bear in mind the principles, as aforesaid, while considering the reasoning of the trial Judge in reaching the conclusion that the accused alone has committed the offence.
13. Let us now start with acceptability of medical evidence which is one of the chains in the circumstantial evidence in the present case tendered by Dr. U. C. Patnaik (P.W.20) who conducted autopsy on the deadbodies of the deceased persons on 5.6.1998 on police requisition. He found injuries as indicated in the postmortem reports such as Ext. 17 in respect of deceased Lata Sahu; Ext. 18 in respect of deceased Anirudha Sahu and Ext.19 in respect of deceased Puja Sahu.
14. The injuries found on the bodies of the deceased persons may be mentioned as below as per Exts.17, 18 and 19 :
(A) Ext.17 : There was a punctured wound of size 3" x 14" x more than 5" in depth present over the left side of the neck having a transverse direction. Margins were clean cut and ante mortem blood clots were found on the same. On-dissection, injuries to the left carotid artery and branches were found to the left jugglar innominate veins, nervous trachea and lyrins.
(B) Ext.18 : There was a punctured wound of 3" x 1" x more than 5" in depth present over the right side and back of the neck. It is clean cut, margins which were almost parallel to each other and were transversely placed. Ante-mortem blood clots were found on the margin of the wounds. On dissection the injuries to all the muscles of the right side neck, right carotid artery, right jugglar innominate veins, trachea, lyrins, they are cut into two pieces with huge clots over the wounds were found.
(C) Ext.19 : There was punctured wound 3" x 1" more than 3" in depth present over the middle and left side of the neck and on dissection the injuries to the vita! organs like carotid artery, jugglar veins and innominate veins were found. The muscles, nervous, trachea, lyrins were injured. There was fractured of hyoid bone and huge ante mortem clots were found on the wound and trachea. The margins were clean cut, parallel to each other and were placed transversely.
15. The oral evidence of P.W.20 corroborated by Exts.17, 18 and 19 has established that the injuries sustained on each of the deceased persons were ante mortem in nature and might have been caused by a heavy sharp cutting double edged weapon. The Doctor has opined that deaths of the deceased were due to shocks and haemorrhage owing to injuries to the vital organs. According to him time since deaths of all the deceased persons was within 36 hours by the time of conducting autopsy on 5.6.1998. He has further opined that the deaths of all the deceased persons were homicidal but not suicidal. The fact that the injuries sustained by the deceased persons as per Exts. 17, 18 and 19 were ante mortem in nature and their deaths were homicidal has not been challenged by the defence either at trial before the learned trial Judge or before us by the learned counsel appearing for the condemned person. Accordingly, the finding of the trial Judge on this score is hereby affirmed by us unhesitatingly.
16. Next, we would look for motive of the accused for commission of the crime. The Apex Court has laid down the law on the question of motive in the case of Udaypal Singh v. State of U.P, reported in AIR 1972 SC 54. We quote it thus :
"*** *** *** In cases where only circumstantial evidence is available, at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having strong enough motive had the opportunity to commit the crime and the established circumstances on the record considered along with explanation if any of the accused, exclude the reasonable opportunity of anyone else being the real culprit than the chain of evidence can be considered to be so complete as to show that with all human probabilities the crime must have been committed by the accused, he may in that event safely be held guilty on such circumstantial evidence.
*** *** ***
17. However, motive being purely a state of mind known to perpetrator of crime alone cannot be proved by direct evidence for which all such circumstances leading to such motive are needed to be placed before the Court. Therefore, in such a view of the matter, we are called upon to find out if the motive ascribed by the prosecution has, at all, been established against the condemned person. Motive, being an important and compelling force behind commission of a crime, is most relevant factor which cannot be lost sight of. So, we have to see by what circumstances prosecution has endeavoured to prove it in the case at hand. In the case of Suresh Chandra Lahari v. State of Bihar reported in AIR 1994 SC 2420, the Apex Court has taken the following view ;
"A motive is something which prompts a person to form an opinion of intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty for the offence charged with. But it has to be remembered that absence of proof of motive does not render the evidence bearing on the guilt of the accused, nonetheless, untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstance prompted him to certain course of action leading to the commission of the crime.
*** *** ***
18. The learned counsel for the condemned person has urged that no such motive for commission of the crime having been established beyond all reasonable doubt, prosecution case cannot be said to have been proved. Refuting this contention, Mr. P.K. Mohanty, learned Addl. Government Advocate, has contended that in the present case there are enough materials to prove motive on the part of the accused to commit the crime. His contention is that being in dire need of money for his business, he was prompted to rob the deceased persons of their valuables during the night of the occurrence. He was with them during the said night and had in the opportunity to commit the crime.
19. We, while proving such motive on the part the condemned person, have to examine all the following circumstances together. Indubitably accused was carrying on turmeric and mustard business at the material time for which he was in dire need of money. P.W.12, who was running a grocery shop in his village Kakirigumma, proved this fact. His evidence shows that the accused had gone to him 8 to 10 days prior to the date of occurrence. He asked him for a loan of Rs.5000/- for the purpose of his business but P.W.12 did not lend him the amount as required by him. This, in fact, is very strong incriminating circumstance appearing against the accused. During his examination under Section 313, Cr.P.C. this fact was brought to his notice. In his explanation, he has admitted that he had dealings with P.W.12 who refused to lend him Rs.5000/- at the relevant time for his business. Thus, the learned trial Judge has rightly relied on the evidence of P.W.12 to hold that the accused was in dire need of money for his business which prompted him to go to the house of the deceased persons and stay there during the fateful night of the occurrence to avail of the opportunity to commit the crime.
20. Mr. C. A. Rao has argued that the said circumstance is not conclusive of the guilt of the accused as it is not capable of explanation on the hypothesis consistent with the guilt of the accused. According to him it is rather fanciful hypothesis to be relied upon by the trial court to base conviction of the accused. Above all, he has strenuously argued regarding the sufficiency and effect of all the circumstances brought against him. We do not see eye to eye with Sri Rao in respect of such contention in view of judicial pronouncement, regarding sufficiency and effect of circumstantial evidence for convicting the accused. We rely on AIR 1970 SC 648, State of Andhra Pradesh v. I.B.S. Prasad Rao and Ors., on this point. In the reported case, the Apex Court has taken the following view on the subject:
"In regard to the question of effect and sufficiency of circumstantial evidence for the purpose of conviction, it is now settled law that before conviction based solely on such evidence can be sustained, it must be such as to be conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis sustained by the accused, however, extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence has remained unexcluded by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not far fetched. Further, it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused; conviction would be justified even though it may be that in one or more of those facts by itself is not decisive."
21. The next circumstance whether the accused was present in the house of the deceased during the night of the occurrence has to be proved along with other circumstances regarding visiting terms of the accused to the house of the deceased, last seen theory etc. So far as the relation between the accused and deceased Anirudha is concerned, the prosecution relies on the evidence of P.Ws. 5, 6 and 7, which goes to indicate that the accused happens to be an agnetic nephew of deceased Anirudha. Their evidence further shows that he had visiting terms to the house of Anirudha. In his statement under Section 313, Cr.P.C. the accused has admitted that he is related to Anirudha. But the allegation that he had visiting terms to the house of Anirudha has been denied by him. However, his explanation in this regard is not satisfactory particularly when P.W. 5 who is a common relation of the accused as well as the deceased reiteratedly stated that he had visiting terms to the house of the latter. We inspire confidence from the version of P.W.5 as he is not only his relation, but also he is in no way inimical to the accused. Evidence of P.W. 15 added further strength to our confidence regarding visiting terms of the accused to the house of the deceased persons. His version shows that prior to the occurrence he had been to the house of his brother Anirudha to call his sister-in-law (Lata) to his village on the occasion of Thakurani Jatra. On that occasion Lata (deceased) narrated about visiting of the accused to their house always in the absence of her husband (Anirudha). She also told him that he was having evil eye on her and thereby causing her embarassment. She requested him to impress upon his brother to prohibit the accused from visiting their house. Accordingly, he told his brother while taking dinner together to which Anirudha replied that the accused being his relative and was coming to his house for a morsel of food he was not prepared to forbid him from visiting their house. Hearing this he kept quiet. Subsequently he learnt about murder of his brother, sister-in-law and niece. His version has remained unassailed by the defence during cross-examination. Therefore, evidence of P.W.5 coupled with the evidence of P.W.15 is sufficient to reach a conclusion that accused who happens to be an agnetic nephew of deceased Anirudha, was in the habit of going to their flat in the Irrigation Colony at Jeypore. That being so, we agree with the finding of the learned trial Judge on this score.
22. Question of presence of the accused in the house of the deceased persons at the material time is more important to connect him with the complicity of the crime. So, the most vital question that poses before us for consideration is, whether the accused visited the house of the deceased in the night of 3/4.6.1998. In this regard, prosecution has examined neighbours of the deceased and a Pan Shop owner. P.W.1 (informant) is one such neighbour. His evidence disclosed, the neighbourly relation between family members of Anirudha and his family. It further reveals that a three years little daughter of Anirudha was regularly coming to his house for playing. His wife Lata was quite often visiting to his house. As usual on 3.6.1998 at about 9 P.M. Lata came to his house. At that time her daughter Puja was playing in his house. While she was going back with her daughter, his mother (P.W.3) told her to stay for a while to which she replied that nephew of her husband had come from village and she would serve him food. P.W.3 has fully corroborated evidence of P.W.1 in ail material particulars regarding presence of an agnetic nephew of deceased Anirudha. It is true that presence of the accused in the house of deceased Anirudha in the night of occurrence has not been specifically disclosed from the evidence of P.Ws. 1 and 3. However, their evidence has proved presence of a guest who is agnetic nephew of Anirudha in the said night. That being so, the question arises whether the said guest was the accused himself or not.
23. Whether the accused was present in the house of the deceased in the night of occurrence is a pertinent question here. Prosecution relies on the last seen theory to connect the accused with the commission of the crime. The Prosecution claims that a chain of link to the circumstances showing that deceased Anirudha was last seen in the company of the accused during the night of the occurrence is available in the evidence of P.W. 2, who is a Pan shop owner near the house of the deceased in the Irrigation Colony. Stand of defence is that the accused was never in the company of deceased Anirudha during the said night. As such, we have meticulously examined P.W. 2's evidence. We quote it as below :
"Deceased Anirudha Sahu was residing with his deceased wife and child in the Irrigation Colony. I have my Pan Shop in the said Irrigation Colony. My Pan shop situates at a distance of 200 metres from the house of deceased Anirudha."
The fact that P.W.2 has his Pan shop near the house of the deceased is not disputed by the defence. His evidence is further quoted as below :
"On 3.6.1998 Ani Sahu came to my Pan Shop at about 9 P.M. in the company of the accused (the witness identifies the accused standing in the dock to be the person accompanying deceased Anirudha}. The deceased then purchased two Sachatesh Khaini from my shop. The irrigation Colony is lighted by street lights. My shop is also electrified. On the next morning at about 6 A.M, I was opening my Pan shop and at that time I saw the accused coming from the house of the deceased and crossed my shop and went away. That evening I heard that deceased Ani, his wife and their girl child were murdered."
24. PW. 2 has been subjected to cross-examination by the defence. But he has stood by his testimony during cross-examination. He has identified the accused very correctly during T.I. Parade as well as at trial as the person who had gone to his Pan shop in the night of 3.6,1998 to purchase two packets of Sachatesh Khaini, out of which one half used and the other intact were recovered and seized by the police under seizure list Ext.3 during investigation of the case. P.W.2 has reiteratedly and emphatically stated to have seen the accused coming from the side of the house of the deceased persons and going on the road crossing his Pan shop while he was opening it in the following morning about 6 A.M. Subsequently, in the evening he came to know about murder of the deceased persons. In this regard, prosecution has also relied on the evidence of P.W.5 who has stated that on 3.6.1998 the accused was not present in his village. Even from the statement of the accused made under Section 313, Cr.P.C. fact of his absence from his house in the night of 3/4.6.1998 is very clear. Therefore, relying on the evidence of P.W.2, statement of P.W.5 as well as own statement of the accused under Section 313, Cr.P.C., the learned trial Judge came to hold that the accused was in the house of the deceased persons in the night of the occurrence and that deceased Anirudha was last seen in the company of the accused and we agree with the said finding of the learned trial Judge. Therefore, from these facts motive on the part of the accused has been established indicating his evil intention to commit the alleged crime taking the aforesaid opportunity of staying in the house of the deceased persons during the fateful night of the occurrence.
25. Mr. C. A. Rao has also contended that in the absence of positive materials about the probable time of death of the deceased persons, there is possibility that during the long gap, i.e., between evening of 3.6.1998 and morning of 4.5.1998 some other person might have entered into the house of the deceased persons and committed the alleged crime. According to him on that ground it cannot be conclusively held that accused is the author of the crime.
26. In view of contentions raised by Mr. C. A. Rao, it is expedient in law to prove that such a last seen together aspect is a clinching circumstance to fasten the guilt to the accused. We have to consider the theory of last seen together as a link to the chain. The law is well settled that merely because two persons are found together at a particular time and sometimes thereafter one of them was found unnaturally dead, the inevitable conclusion is, not that the other is the author of the crime. In this case. Medical Officer (P.W. 20) has opined that the time of death of the deceased persons was within 36 hours by the time of Post Mortem examination. On 5.6.1998, P.M. examination of the deadbodies of the deceased persons was conducted. This shows that during the night of 3/4.6.1998 the crime was committed in the Flat in question. From the evidence of P.W. 2 it admits of no doubt, around 9 P.M. of 3.6.1998, the accused together with the deceased Anirudha came to his Pan shop. Subsequently during the said night most probably after 9 P.M. when the deceased persons were in deep sleep, they were assassinated. In the following morning at about 6 A.M. the accused was coming from the side of the house of the deceased. This fact has been proved by P.W.2. No materials are available on record to indicate that during the said night between 9 P.M. of 3.6.1998 and 6 A.M. of 4.6.1998 somebody other than the accused entered the house of the deceased persons and murdered them. In fact, the defence never suggested to any of the witnesses that someone else entered their house and committed the alleged crime at the material time. On scrutiny of the evidence of P. W. 2, we are fully convinced that he is a truthful witness having no inimical relation whatsoever with the accused. As such his evidence that he saw the deceased last in the company of the accused in the night of the occurrence cannot be disbelieved and discarded. The said last seen together aspect is a clinching circumstance appearing against the accused. So, we consider it as an important link to the chain of circumstances which have already been proved against him. Therefore, the last seen together aspect as a link to the chain of circumstances is well connecting the accused with the alleged crime. From this, motive on the part of the accused to stay in the house of the deceased persons in the fateful night of the occurrence with evil intention to commit the crime can be inferred. Hence, in our considered opinion Mr. Rao's contention that someone else other than the accused entered the house of the deceased persons in the night of the occurrence and committed the alleged crime is not sustainable. We reject the said contention accordingly.
27. The learned counsel, Shri Rao, for the appellant left no stone unturned in attacking the prosecution case on the ground that independent witnesses such as P.Ws. 4 and 8 having not supported the prosecution case, as important link to the chain of circumstances has been missing and that being so, the case of the prosecution cannot be said to have been proved beyond reasonable doubt. It is true that P.W. 4 is an immediate neighbour of deceased Anirudha. But he turned hostile to the prosecution case. He resiled from his version made to the I.O. during investigation to the effect that when the deceased was going together with another person to purchase khaini he was parking his bi-cycle near the stair case. On his query, Anirudha told him that since his nephew has come from his village they had gone to purchase khaini for him. This fact which P.W. 4 stated to the I.O. during investigation has been resiled by him during his examination in the Court. Similarly, P.W. 8 (Puspalata Mohanty) another neighbour had been to the house of the deceased persons to talk about the performance of 'SUDASA BRATA'. While talking to deceased Lata, she could see the legs of a person who was in the room. She has also turned hostile to the prosecution case. She stated to have not remembered if she stated before the I.O. that at that time deceased Lata revealed before her that a guest i.e. a relation of her husband had come from their village, During cross-examination by the defence she said, on seeing the legs of a person she thought the husband of the deceased Lata was present in that house. Basing on the statements of P.Ws. 4 and 8, Mr. Rao persuaded us to disbelieve the prosecution case. In our view, such contention of Mr. Rao is unsustainable in law particularly when the circumstance that the accused and the deceased Anirudha were last seen together has been fully established by the clear and categorical testimony of P.W. 2. Hence, we are of considered view that substratum of the prosecution case cannot be said to have been destroyed even if some witnesses such as P.Ws.4 and 8 did not support the prosecution case since many links to the circumstances available on record forming a complete chain pointing unerringly to the guilt of the accused have been fully established.
28. It is not in the dispute that the deceased persons met homicidal death in Flat No. DSF-F/79 of Irrigation Colony of Jeypore. The neighbours P.Ws. 1 and 3 have fully corroborated the prosecution case as disclosed from the F.I.R.(Ext.I) which has been further corroborated by P.W. 9 to the effect that the deceased persons were lying dead in the Flat with bleeding injuries on their persons and gold ornaments from the necks of deceased Lata and Puja were missing. P,W. 10 relation of Anirudha came to the spot along with others and saw the deadbodies of the deceased persons with bleeding cut injuries on their necks. P.W. 11 has proved the inquest reports (Exts.7, 8 and 9) prepared by the I.O. in respect of deadbodies of Anirudha, Lata and Puja, respectively.
29. The next circumstances appearing against the accused is recovery of gold ornaments of deceased Lata and Puja on his information during investigation of the case by the Police. Evidence of P.W. 13 elder brother of deceased Lata indicates that gold, chain, nose tops, a pair of ear tops and a ring fitted with red stone were gifted by him to his sister Lata. His evidence also shows that after birth .of his niece Puja a gold chain (Sorisa Mali) was given to her by P.W. 13. He has also given a Titan ladies wrist watch to Lata, Besides P.W. 13, Anirudha's elder brother (P.W. 15) has also stated to have seen Lata and Puja wearing the said gold ornaments during their life time. That apart, P. W. 3, a neighbour, mother of P.W.1 was seeing them wearing daily the aforesaid gold ornaments. As such on the evidence of P.Ws. 13, 15 and also P.W. 3 the seized gold ornaments are held to be the properties of Lata and Puja who were wearing them prior to the occurrence.
30. The seized gold ornaments were missing from the neck of deceased Lata and Puja as per evidence of P.W.1 (informant) who has also mentioned this fact in the F.I.R. (Ext. 1), During investigation, I.O. (P.W. 22) recovered and seized the said ornaments. His testimony corroborated by the evidence of independent witness (P.W. 21) shows how he made recovery of the ornaments and other incriminating materials connecting the accused with the complicity of the crime. For better appreciation of his evidence, we quote his statement thus :
"While under custody, the accused revealed before me in presence of other witnesses that he has concealed the weapon of offence under the bamboo bush standing near hay-stake and that he has concealed the cash and ladies wrist watch in a box in his house. He further revealed that he has sold the gold ornaments to a Gold smith at Jeypore. He further stated that he shall lead me to the places where the knife was concealed, the cash and watch were concealed at the shop of the Gold Smith, accordingly, I reduced the statement of the accused into writing under Section 27 of the Evidence Act in presence of the witnesses. Ext, 22 is the said statement."
The above statement of the I.O, finds ample corroboration in the evidence of independent witness (P.W. 21), in all material particulars.
31. The evidence of I.O. corroborated by P.W.21 proved disclosure statement (Ext.22) made by the accused. His evidence further discloses that while the accused was leading him and witnesses such as P.W.21 to his village Niranguda, he escaped from the lawful custody of the Police. But, however, he was recaptured subsequently. In this regard, we have noticed from the evidence of P.W.22 that he initiated a separate G. R. Case against the accused for having escaped from the lawful custody of the Police.
32. Ext. 22 being an important document, we have examined it thoroughly and very carefully. From admissible portion of Ext. 22, it is revealed that on 4.6.1998 at about 8 A.M. while the accused was going to Jeypore market, one Gold, smith asked him if he had any work to be done, to which he replied that he needed money for performing funeral ceremony of his wife for which he would sale some ornaments hearing which the said Gold smith took him to a Gold smith's shop where on the instruction of the Gold smith he scribed a paper (Ext.15) agreeing for sale of gold ornaments and signed his name in the said paper as 'Dibakar Sahoo'. Ext. 22 also shows that the accused sold one gold chain, one Sorisha Mali, Kana fula etc. for a sum of Rs. 7,200/-. The Gold smith paid him the said amount in hundred rupee G.C. notes. Then the accused went to his village and kept the said amount along with ladies Titan wrist watch in a plastic box in his house. Then he concealed the weapon of offence (knife) under a bamboo bush situated near a hay stake behind his house. So saying he led the 1.0, (P.W. 22) and independent witness (P.W. 21) to the place of concealment of incriminating materials and also to the shop of Gold smith where he sold the gold ornaments.
33. A perusal of evidence of the I.O. (P.W. 22) shows that during investigation the accused first led to discovery of one iron knife from a bamboo bush situated near the back side of his house. He himself brought out the said knife (M.O. VIII) and produced the same before the witnesses. P.W. 22 seized the knife under seizure list, Ext. 23. Then he led the Police and the witnesses to his house and gave recovery of one ladies. Titan wrist watch and cash of Rs. 9000/- kept in a green plastic box. The I.O. seized these articles under Seizure list, Ext. 24. Evidence of P.W. 22 further discloses that the accused led the Police and the witnesses to the house of a Gold Smith, T. Ramarao (P.W. 19), to whom he sold gold ornaments.
34. The evidence of T. Keshab Rao Achary (P. W.17) and Gold Smith, T. Ramarao (P.W.19) cannot be lost sight of regarding recovery of gold ornaments of Lata and Puja. We quote the relevant portions of their evidence as below :
Evidence of P.W.17 " I know the accused standing in the dock. About two years back in the month of June on 4th the accused came to me and stated that his wife has expired and for the Sudhikriya, he needs money. Then he proposed to sell the gold ornaments to raise money. At that time, I was not aware of his name. Then I took the accused to the shop of T. Rama Rao, which is situated on the main road of Jeypore. T. Rama Rao was present in his shop. At that place, accused revealed that his name is Dibakar Sahoo and that he intends to sell told ornaments. As the accused was not previously known to us a paper containing his name, address and signature was prepared by the accused himself at the time of sale transaction. Gold ornaments were weighed and T, Rama Rao gave Rs. 72007- to the accused. The said paper was scribed in my presence. Ext. 15 is the said paper, Ext. 15/1 is the signature of the accused given thereof. M.Os.l to VI are the gold ornaments which was sold by the accused to Gold Smith, T. Rama Rao."
Evidence of P.W.19 "P. W. 17 also has a Gold smith shop near that of my shop. On 4.6.1998 at about 8A.M., P.W. 17 brought this accused (identifies) to my shop. The accused then revealed his name to be Dibakar Sahu. The accused reveals that his wife has died and he is in need of some money to perform the Dasaha for his deceased wife and for that reason he wanted to sell some gold ornaments. The accused produced M.O.I to VI (The witness identifies the ornaments) before me. I weighed the same and found it to be one Tula, twelve annas. Then I purchased the same for Rs. 7200/-. After selling gold, the accused gave a written note reciting sale of gold ornaments. Ext. 15 is the said note and Ext. 15/1 is the signature given by the accused at that time."
35. From the statements of P. Ws. 17, 19, 21, and 22 as quoted above coupled with the evidence of P. Ws. 1, 2, 3 and 9, it admits of no doubt that after the accused took to his heels with the stolen cash, gold ornaments and other valuables from the house of the deceased, he sold gold ornaments of Lata and Puja to P.W. 19 through P.W. 17 at about 8 A.M. on 4.6.1998 for Rs. 7200/-giving his identification as one Dibakar Sahoo. Evidence of the I.O. (P.W. 22) corroborated by the evidence of the independent witnesses (P.Ws. 17, 19 and 21) proved the recovery of gold ornaments of Lata and Puja from the shop of P.W. 19. The evidence of the above witnesses further indicates that on production of gold ornaments by P.W.19 from his shop, the I.O. (P.W.22) seized the same under seizure list (Ext.16). Therefore, we are fully convinced with the evidence of the aforesaid witnesses regarding recovery and seizure of cash, wrist watch and gold ornaments basing on the information of the accused (Ext. 22), prepared by the I.O. This being an important incriminating circumstances appearing against the accused, it was put to him during his examination under Section 313, Cr.P.C. to which he gave his explanation that the money seized by the Police is of his sister and the gold ornaments seized by the Police is of his wife. But, his explanation without being supported by any evidence cannot be accepted. Accordingly, his plea that he has been falsely roped by the Police in this case cannot be accepted in the absence of any material on record in support of such a plea.
36. We have elaborately dealt with the disclosure statement made by the accused basing on which stolen properties and also weapon of offence have been recovered by the I.O. The learned counsel for the appellant challenged the admissibility of the disclosure statement made by the accused to the I.O. on two grounds. Firstly, his contention is that actually no such statement was made by the accused. Secondly, the statement made was inadmissible in evidence. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly, Section 26 provides that confession by the accused person while in custody of Police cannot be proved against him. However, to the aforesaid rule of Section 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of Police Officer, so much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered, may be true. Section 27 is a proviso to Section 25 and 26. Such statements are generally termed as disclosure statements leading to discovery of fact which presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, such guarantee is afforded thereby that the information was true and accordingly, it can be safely allowed to be given in evidence.
37. Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent events. The Apex Court has given the Section actual and expanding meaning in the case of State of Maharastra v. Damu son of Gopinath Sinde and Ors. reported in 2000 (6) SCC 269. The said doctrine of confirmation as laid down by the Apex Court in the aforesaid judgment is quoted thus :
"The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that, if any fact is discovered in a search, made on the strength of any information obtained from a prisoner such a discovery is guarantee that the information supplied by the Prisoner is true. The information might be confessional or non-inculpatory in nature, but it results a discovery of a 'fact which becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. The decision of the Privy Council in Pulukuri-Kottaya v. Emperor (1947 PC 67) is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the Section embrasses the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
In view of the law laid down as quoted above the contentions raised by the learned counsel for the appellant cannot be accepted.
38. We have no reason to disbelieve the evidence of the I.O. regarding recovery and seizure of the incriminating articles made on the strength of the information of the accused. We would like to rely on the ruling of the Apex Court reported in 2000 (7) Supreme 728, State Government of N.C.C. Delhi v. Sunil and Anr., wherein the following view has been taken.
''When a Police Officer gives evidence in Court that a certain article was recovered by him on the strength of a statement made by the accused, it is open to the Court to believe the version bo be correct, if it is not otherwise shown to be unreliable. It is not a legally approprable procedure to presume the Police action as unreliable to start with nor to jettison such action merely for the reason that the Police did not collect the signature of independent person in the document made Contemporaneous to such action."
In the present case, the I.O prepared the statement of the accused under Section 27 of the Evidence Act contemporaneous with recovery of the aforesaid incriminating articles. At the same time, he got it attested by independent witness (P.W. 21). As such, the evidence of the I.O., who deposed to the fact of recovery based on the statement elicited from the accused corroborated by P. W. 21 inspires our confidence for which we do not look at the action of the I.O. with distrust. Therefore, applying the dictum of the Apex Court to the present case, we have found that the recovery evidence of the I.O. corroborated by independent person (P.W. 21) has been rightly accepted and relied upon by the learned trial Judge. Hence, the defence theory that the money seized by the Police is of his sister and the gold ornament seized by the Police is of his wife and that the accused has been falsely roped by the Police in the present case has been falsified.
39. After recovery of the incriminating article the Investigating agency put them in the T.I. parade for their identification by the relation of the deceased persons, neighbour and also the Gold smith through whom they were sold by the accused to P.W.19. For example, deceased Lata's elder brother (P.W. 13) correctly identified the gold ornaments such as gold chain, (M.O.I), ear tops (M.O.II) and M.O.II-a, guna (M.O.III), Nose tops (M.O.IV), Sorisa Mali (M.O.V) and gold ring (M.O.VI) during T.I. parade conducted by the learned J.M.F.C., Jeypore (P.W. 16) by observing all legal formalities and taking necessary precaution before conducting the said test. Since he has given the ornaments to his sister Lata at the time of her marriage, he could identify the aforesaid gold ornaments (M.O.I to VI) correctly in the T.I. parade. It is also seen from his evidence, that he had given Sorisa mali (M.O.V) to Puja after her birth. He had given Titan wrist watch (M.O.VII) to her sister Lata after birth of Puja. Therefore, evidence of P.W. 13 regarding identification of gold ornaments M.Os. I to VI and M.O.VII, (a Titan ladies Wrist Watch) in the T . I. parade inspires our confidence. Likewise, P.W. 15, being elder brother of deceased. Anirudha, having seen Lata and Puja wearing the sail ornaments prior to the occurrence, could correctly identify M.Os.I to VIII in the T.I. Parade as per T.I. Parade memo of ornaments (Ext.6). Similarly, P.W.3, a neighbour to whose house Lata and Puja had visiting terms, having seen them wearing the said ornaments everyday regularly prior to the occurrence, her evidence regarding identification of the said ornaments in the T.I. Parade equally inspires our confidence. That apart, P.W.17 through whom accused sold the ornaments to P.W.19, has also . identified him correctly in the T.I. Parade as per T.I. Parade memo of suspects (Ext.5). Hence identification of incriminating articles as per Ext.6 and that of the suspect in the T.I. Parade as per Ext. 5 conducted by P.W. 16 is an important link in the chain of circumstances appearing against the accused. Regard being had to the evidence of P.Ws 3, 13, 15,16 and 17; we can safely hold that the prosecution has been able to prove that the gold ornaments M.Os, I and VI and Wrist Watch M.O. VI belonged to deceased Lata and Puja and that the accused committed robbery of the same from Flat No. DCF-F/79 in the Irrigation Colony at Jeypore during the night of the occurrence.
40. The learned counsel for the appellant has vehemently criticised the evidence regarding recovery of knife (M.O.VIII) from a bamboo bush on information of the accused as unacceptable, particularly when the bamboo bush is accessible to all.
On this point, we would like to rely on (1999) 16 OCR (SC) 575, (State of Himachal Pradesh v. Jeet Singh). In the said case the fact discovered by the police with the help of the disclosure statement and the recovery of incriminating articles on the strength of such statement is that it was the accused who concealed those articles at the hidden places. Their Lordships laid down the law in the above decision as below :
"It is immaterial that such statement of the accused is inculpatory because Section 27 of the Evidence Act renders even such inculpatory statement given to a police office admissible in evidence by employing the words 'whether it amounts to confession or not1".
This shows that nothing in Section 27 of the Evidence Act renders statement of the accused inadmissible, if recovery of articles is made from any place which is open or accessible to others. Now let us quote observations of their Lordships made in the reported case to clarify this point more fully, as below :
"It is a falacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is burried on the main road side, or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the Article would remain out of the visibility of others in normal circumstances. Until such article is disinterred it hidden state would remain unhampered. The person who his it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
Judging the facts of the present case in the light of the aforesaid dictum, we have found that the weapon of offence (M.O. VIM) was concealed by the accused under a bamboo bush near his house. No doubt, it is accessible to others. But it is immaterial in view of the fact that it was ordinarily not visible ' to others. As such, in view of ruling of the Apex Court above quoted, the contention of the learned counsel for the appellant is not sustainable.
41. It is revealed from evidence of the I.O. corroborated by the Medical Officer (P. W. 20) that the former sent the weapon of offence (M.O. VIII) to the latter who on examination of the same expressed his opinion in Ext. 20/1 stating that the injuries inflicted on the deadbodies of Anirudha, Lata and Puja can be possible by the said weapon, which is a very important link to the chain of circumstances already established against the accused, but no less important is the chemical examination report (Ext. 36) relating to examination of M.O. VIII indicating very clearly that it was stained with deep blood of human origin of Group 'AB', which corresponds to blood Group of deceased Puja i.e. Group 'AB' as has been determined by the Chemical Examiner vide Ext. 35.
42. The prosecution has also brought on record another circumstance appearing against the accused. Finding of blood in the nail clippings collected by another Medical Officer (P.W. 23) is the said circumstance which may not alone be sufficient to prove guilt of the accused, but the same along with other surrounding circumstances considered by us to be consistent with the theory of complicity of the accused in the commission of the crime.
43. The prosecuting agency has left no stone unturned in obtaining finger prints of the culprit from the scene of occurrence with the help of the Scientific team of whom two have been examined as P.Ws. 24 and 25 who have collected blood stained finger prints, chance finger prints from the spot on 4.6.1998 as evident from their spot visit report Ext.25. Evidence of P.W.24 also throws sufficient light that during investigation of the case he collected the finger prints, palm prints and foot prints of the accused from the scene of the occurrence which were sent to Finger Print Bureau together with accused's specimen finger prints vide Exts. 30 to 30/11 series for comparison. A perusal of report of Finger Prints Bureau (Ext. 34) indicates that the blood stained chance finger prints marked 'A' detected on the wall of Lata's room, chance finger prints marked 'C', 'C-1' and 'C-2' detected on steel container and 'D' detected on outer side of the steel tray tallied with the specimen finger prints marked 'P', 'Q', 'R', 'S' and 'X' said to be the right thumb, right index, right middle, right ring and left middle finger prints respectively of the suspect Dayanidhi Bisoi. Therefore, it is seen that the finger prints collected from the scene of occurrence tallied with the specimen finger prints of the accused.
44. Mr. C. A. Rao, the learned counsel for the appellant has drawn our attention to the fact that the accused was in the custody of the Police from 8.6.1998 till 12.6.1998. His contention is that the entire investigation is bound to be vitiated for the mistake of the l.O. in detaining the accused in Police custody for longer period than required. From the materials available on record it is clear that the accused was absconding from his village after the occurrence. On 8.6.1998 from village Kakirigumma he was apprehended. The l.O. kept him under his custody for interrogation during which when he started giving prevaricating statements, he was arrested on suspicion on 10.6.1998. While he was in police custody for interrogation, he made disclosure statement (Ext. 22). He led the Police and witnesses to his village for recovery of incriminating articles. But soon after reaching his village as evident from the statement of the l.O. (P.W.22) he escaped from the Police custody. He was of course recaptured subsequently thereafter. In this regard, the l.O. has stated that the accused while escaping from Police custody sustained injuries on his head and hand for which he was admitted to the District Head Quarters Hospital, Koraput for his treatment. So, after he was discharged on 11.6.1998 from the said hospital he was forwarded to the Court on 12.6.1998. Discharge certificate (Ext.28) issued by the concerned authority has proved this fact. In view of the aforesaid facts and circumstances of the case, we do not accept the contentions of Mr. Rao. He has also challenged the finding of the learned trial judge that the accused executed a chit showing sale of gold ornaments scribing his name as 'Dibakar Sahu'. His contention is that the said paper with note said to have been scribed by the accused vide Ext, 15 cannot be used as an incriminating material against the accused particularly when the signature 'Dibakar Sahu1 appearing in the said chit has not been sent to the Hand Writing expert to ascertain if the same has been written by the accused. In this regard, we have perused the evidence of P.W. 17 through whom the accused sold the ornaments to P.W.19. We have also gone through the evidence of P.W.19 to whom accused sold the gold ornaments and executed Ext. 15. We are convinced with their evidence which corroborates with each other in all material particulars indicating that the accused himself scribed Ext. 15. The learned trial Judge on comparison of handwritings of the accused with the signature 'Dibakar Sahu1 appearing in Ext, 15 came to hold that the accused with false identification sold the gold ornaments to P.W. 19 and executed Ext. 15. In view of overwhelming evidence though circumstantial available on record against the accused, we do not agree with the contentions raised by the learned counsel for the accused.
45. Now the most vital and very crucial question posing before us is, whether in the present case murder and robbery have been integral part of one and the same transaction. The learned trial Judge after thoroughly dealing with all the incriminating circumstances appearing against the accused came to hold that the accused committed murder of the deceased persons as well as committed robbery of their gold ornaments in course of the same transaction. We have also found that the prosecution has proved beyond doubt that consequent upon the disclosure statement made by the accused, the incriminating articles were recovered. The cash, wrist watch and gold ornaments recovered consequent upon the disclosure statement of the accused have been proved to be the properties of deceased Lata and Puja. The accused had stolen the same after commission of murder. In the case of Gulab Chand v. State of Madhya Pradesh, 1995(3) SCC 574, their Lordships besides Section 27 of the Indian Evidence Act, drew presumption under Section 114, illustration(a) and Section 106 of the Evidence Act. Their Lordships held that simply on the recovery of stolen articles no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. In such a case, culpability for the offence with which the accused is charged will depend upon the facts and circumstances of each case and the nature of evidence adduced. In the case of Sanwant Khan v. State of Rajasthan, AIR 1956 SC 54, the Apex Court held that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. In case there is evidence against the accused only with regard to recovery of stolen properties even though there are circumstances to show that theft and murder might have been committed at the same time, their Lordships considered it unsafe to draw an inference that the person in possession of the stolen properties had committed the murder. Here, their Lordships have cautioned that suspicion should not take the place of proof. In our considered opinion, the above quoted authority does not apply in the facts and circumstances of the present case.
46. In the case of Tulsiram Kanu v. State, AIR 1954 S.C. 1, their Lordships have indicated that presumption permitted to be drawn under Section 114, illustration (a) of the Evidence Act has to be drawn under the important time factor. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt is permitted. But if several months have expired in the intervals, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.
47. In the case at hand, prosecution has proved beyond doubt that during the night of 3/4.6.1998 the deceased persons were murdered in Flat No. DCF-F/79 in the Irrigation Colony at Jeypore. In the following morning on 4.6.1998 the accused sold the gold ornaments belonging to Lata Cand Puja to P.W. 19, and 5 to 6 days thereafter the recovery of the said stolen articles were made by the I.O. (P.W. 22) from P.W.19 on the strength of the disclosure statement (Ext. 22) made by the accused. Such close proximity of'the recovery of the incriminating articles is an important time factor. However, in the case of Earabhadrappa v. State of Karnataka, 1983 (2) SCC 330, their Lordships held that the nature of presumption arid illustration (a) under Section 114 of the Evidence Act must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine 'whether possession is a recent or otherwise and each case must be judged on its own facts.
48. On careful consideration of the materials on record, we hold that the prosecution has been able to establish that the accused/ appellant had the motive and the opportunity to commit the crime. The various circumstances, namely, medical evidence justifying that deaths of the deceased persons are homicidal in nature; his need for money for his business; refusal of P.W.12 to lend him Rs. 5000/- when he approached for the same; his visiting terms to the house of deceased Anirudha as his agnetic nephew; his presence in the house of Anirudha during the night of 3/4.6.1998 when he was found absent from his house at his native village Niranguda; the fact that deceased Anirudha was last seen in the company of the appellant around 9 P.M. of 3.6.1998 at the Pan shop of P.W.2 who also saw him going in the morning of 4.6.1998 from the direction of the house of the deceased at about 6 A.M. while he was opening his Pan shop ; and .his identification by P.W.2 during T. I. parade; his conduct like absconding from his village after the occurrence; his subsequent escapement from police custody after his apprehension during investigation of the case prior to which that is immediately after the occurrence i.e. on 4.6.1998 at about 8 A.M., sale of gold ornaments of deceased Lata and Puja by him to P.W.19 giving false identity as Dibakar Sahu and recovery of incriminating materials including the weapon of offence (knife) from a bamboo bush near his house on the strength of disclosures statement (Ext.22) made by him, all established unerringly that he was the real culprit, the author of the crime and the circumstances are incapable of explanation on any hypothesis consistent with his innocence, and all the facts and surrounding circumstances proved, point conclusively to his guilt.
49. Therefore, we, on evaluation of all the materials available on record subscribe to the view of the learned trial Judge who has rightly held that the accused was not affluent enough to possess huge cash, wrist watch and gold ornaments which he sold to P.W.19 immediately after the occurrence. From the nature of evidence adduced in this case and due to recovery of the aforesaid incriminating articles by the I.O. and his dealing with the gold ornaments as discussed above, a reasonable inference of the commission of the offence with which the accused has been charged can be drawn against him. Except making a bald statement that the seized money belongs to his sister and the seized gold ornaments belong to his wife which claim has been rightly discarded, no plausible explanation for lawful possession of the cash and the gold ornaments after murder of the deceased has been given by the accused. Hence on the facts of the case and in the circumstances which have been brought home to him beyond all reasonable doubt, we do not hesitate to hold that murder of deceased Anirudha, his wife Lata and their three years old daughter Puja as well as robbery of their gold ornaments, cash i.e., Rs. 1800/- (Rs. 9000 - 7200 = Rs. 1800/-) and wrist watch etc. have been well established as integral parts of one and the same transaction. Accordingly, therefore, the presumption arising under ilJustration (a) of Section 114 of the Evidence Act is that the accused has not only committed the murder of all the family members o,f Anirudha but also committed robbery of their ornaments, cash and other valuables. In fact, the circumstantial evidence adduced on behalf of the prosecution including the medical evidence giving assurance to the existence of the said circumstances alleged against the accused is very clear, congent, unambiguous, and thereby, unmistakably and unerringly conveying that the accused is the perpetrator of the crime. As a matter of fact, we have relied upon the evidence of the witnesses examined on behalf of the prosecution after subjecting the said evidence to rigorous test on the touch stone of credibility. Therefore, we are in full agreement with the findings as aforesaid reached by the learned trial Judge in ultimately convicting the accused under Section 302 and 392 of the Indian Penal Code.
50. Thus, the guilt of the accused having been established, now the punitive dilema begins. Life imprisonment for murder is a rule and capital sentence is an exception. As per provisions of Section 354(3), Cr.P.C., as the accused has been convicted for an offence punishable with death or life imprisonment, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence have to be recorded. The Supreme Court has observed in many of such cases that the capital punishment may be imposed in the rarest of the rare cases. The retributionists are of the view, "the 'man has killed; let us kill the man", but passing of death sentence must elicit greatest concern and solititude of the Judge because that is one sentence which cannot be recalled. Therefore, we have to be guided by some principles in sentencing the wrong doer. Such principles have been framed by judicial dicta. So, we can resort to such principles in the present case for our guidance. In AIR 1980 SC 898 (Bachan Singh v. State of Punjab), their Lordships of the Supreme Court have observed as follows:
".....for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that contexts, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often than not, these two aspects so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water tight compartments. In essence, to kill is to be cruel and, therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."
51. The Constitution Bench of the Supreme Court in AIR 1980 SC 898 (supra) decided the legality of capital punishment. Their Lords.hips have expressed their view that the provision of death penalty as an alternative punishment for murder in Section 302, Penal Code is not unreasonable and it is in the public interest. Therefore, they have held that the impugned provisions in Section 302 violates neither the letter nor the ethos of Article 19 of the Constitution. The Apex Court, however, has taken note of the aggravating circumstances as suggested by Dr. Chitaley, It is ruled in the reported decision that death sentence would be warranted if the murder is diabolically' conceived and cruelly 'executed', 'having regard to the weapons used and the manner of their use, the horrendons features of the crime and helpless state of the victim and the like, which steel the heart of the law for a sterner sentence' and also where murder has been committed after previous planning and involves extreme brutality. However, presence of 'ameliorating circumstances or mitigating factors' would call for lesser penalty. The mitigating factors suggested by Dr. Chitlay enumerated in Paragraph-204 of the Judgment were approved by the Constitution Bench. We quote them thus :
"1. That the offence was committed under the influence of extreme mental or emotional disturbances.
2. The age of the accused. If the accused is a young or old, he shall not be sentenced death.
3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
4. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
6. The accused acted tinder the duress or domination of another person,
7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
52. In Paragraph-200, of the aforesaid judgment, drawing upon the penal statutes of the States in. U.S.A. framed after Furman v. Georgia, in general and Clauses-2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitley has suggested these 'aggravating circumstances';
"Aggravating circumstances; a Court may, however, in the following cases imposes the penalty of death in its discretion;
(a) If the murder has been committed after; previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murderer is of a member of any of Armed forces of the Union or of a member of any Police force or of any public servant and was committed :
(i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be don(c) by such member or public servant in the lawful discharge of his duties as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant;
(d) If the murderer is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or to have rendered assistance to a Magistrate or a Police Officer demanding his aid or requiring his assistance under Section 37 and under Section 129 of the said Code."
53. In the present case from the materials on record we may elucidate the mitigating circumstances in favour of the convict. He is around 35 years of age having his wife, two minor daughters and also old parents. That apart, as no evidence has been led by the prosecution regarding his antecedent showing his criminal record prior to the present occurrence, he is held to be the first offender. Their Lordships of the Supreme Court have not categorised the circumstances in which murder is to be punishable with death. They are of the view that such rigid categorisation would offend the legislative policy. They have, of course, laid down certain guidelines for imposing death sentence depending on the facts and circumstances of each case. For example ;
(1) Only in the gravest cases of extreme culpability, extreme penalty of death need to be inflicted, (2) Along with crime circumstances of the criminal has to be considered while making choice of punishment, (3) Death sentence must be imposed only when the life imprisonment appears to be altogether inadequate, (4) Before inflicting extreme penalty of death on the convict the Court has to strike a balance between the aggravating and mitigating circumstances.
54. After carefully examining the evidence on record and in the light of the guidelines given in AIR 1980 SC 898 (supra), we have found that in this tripple murder case where the convict extinguished the entire family of Anirudha the felony has been committed in a well planned manner when the deceased persons were in their slumber which is indicative of the fact of their defenceless state. At that time the convict was not under the influence of any extreme mental or emotional disturbance, nor he acted under duress or domination of another person. We do not find any material on record showing conditions of the accused that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality or his conduct. In fact, he became merciless, unkind and cruel towards Anirudha and his wife, who used to feed him with profound love. He betrayed their trust, faith and confidence which they reposed in him and with which they gave him shelter in their house in the night of the occurrence. Their three years old daughter has been done to death mercilessly. She has never provided even any excuse much less a provocation to the convict for murder. Perhaps had she been left unkilled she would have woken up and cried, as a result of which he would have been caught red handed on the scene of occurrence. With that intention he butchered her without any justification in a most brutal manner. Really, it diseminated tremors in the community. Regard being had to the weapon used and the manner of its use, we have found that it is a knife, a lethal weapon with which he cut the larynxes and tracheas etc. of the deceased persons, thereby giving them no scope even to make slightest cry or groaning sound attracting the attention of the neighbours for help. Therefore, even if we give full weightage to the mitigating circumstances, the aggravating circumstances far out weighed the mitigating circumstances in the balance sheet.
55. The learned trial Judge determined death sentence to be imposed on the condemned person after weighing the statutory aggravating and mitigating circumstances. In view of the dictum of the Apex Court laid down in AIR 1980 SC 898 (supra) the learned trial Judge awarded death sentence to the convict by setting forth his findings that sufficient statutory aggravating circumstances exist and are not outweighed by statutory mitigating circumstances. In our considered view the tripple murders were premeditated by the accused who had the propensity to commit murders while committing robbery of the valuables of the deceased persons. In fact the murders being heinous, atrocious and cruel, the convict is held to have inflicted such injuries knowingly and intentionally to cause their death for robbing them of their valuables, so that none could know the crime committed by him, particularly when he committed the crime in the dead of night while the deceased persons were sleeping. Reliance can be placed on the ruling of the Apex Court reported in (1997) 12 OCR (SC) 214 (Surjyaram v. Rajasthan) wherein their Lordships affirmed the capital punishment imposed on the appellant who cut the throats of his relations while they were sleeping. In another Supreme Court decision reported in AIR 1988 SC 672, Ranjeet Singh and Anr. v. State of Rajasthan, the appellant committeed, murder of the entire family which was premeditated and cold blooded especially when innocent children were done to death with lethal weapons when they were fast asleep. While upholding the death sentence imposed on the appellants, their Lordships made the following observations :
"With regard to the sentence of death there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined, and coldblooded. It was absolutely devilish and dastardly. The innocent children were done to death with lethal weapons when they were fast asleep. The sentence of death awarded cannot, therefore, be said to be inappropriate."
56. In another decision of the Supreme Court reported in (1994) 2 SCC 220; 1994 SCC (CRI) 358 (Dhananjay Chatterjee v. State of W.B., their Lordships observed that shockingly large number of criminals go unpunished thereby increasing, encouraging the criminals and in the ultimate making justice suffers by weakening the systems credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that court should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
57. In the case of Aavji v. State of Rajasthan, (1996) 2 SCC 175; 1996 SCC (Cri) 225; Jt (1995) 8 SC 520, their Lordships held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of the appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belonged. The Punishment to be awarded for a crime must not be irrelevant but it should confirm to and be consistent with the atrocity and brutallity with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the societies' cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
58. Therefore, after applying the principles of "rarest of the rare cases formula" as formulated by the Apex Court as quoted above, in this case and keeping in mind the guidelines to be adopted in identification of the rarest of the rare, cases we hold that the circumstances of the case unmistakably and unerringly show that murders of the Anirudha, his wife Lata and their three years' old daughter Puja committed were extremely gruesome, heinous, coldblooded and cruel. The manner in which these tripple murders were committed was most atrocious and shocking. It is a crime of the highest degree where depravity and criminality of the condemned person have been fully established. The murders were committed in cool and calculated manner with an intention of extinguishing the entire family of Anirudha, to whom the accused was related as agnetic nephew. We have also noticed as observed by the learned trial Judge in the judgment impugned before us that there was not even slightest remorse or repentance shown by the convict. The mitigating circumstances were no doubt pointed out by the learned counsel for the appellant during hearing of the appeal but the appellant himself did not state any mitigating circumstances before the learned trial Judge and rather he was adament to say that he did not commit the crime. As appointed out by us earlier that he was around 35 years of age and is having his wife, two daughters and old parents but these circumstances whenweighed against the aggravating circumstances leave us in no doubt that his case falls within the category of rarest of the rare cases. Therefore, considering the horrendous, diabolic, dastardly, pre-planned, calculated, heinous and above all cruel murders of his own relations, we hold that life imprisonment would be an inadequate sentence for the condemned person and that taking into account all the above aspects the learned trial Judge has correctly applied the principles of rarest of the rare cases formula in awarding the death sentence to the convict. The homicides committed by him have been properly and adequately visited with the highest penalty of law with which we are not inclined to interfere because such extreme penalty is the only alternative for him to suffer in the eye of law and accordingly, therefore, we do hereby confirm the penalty of death imposed on him by the learned trial Judge. Besides the authorities above quoted, we rely on two more Supreme Court decisions reported in (1983) 3 SCR 413, Machhi Singh and Ors. v. State of Punjab and (1999) 17 OCR (SC) 75, Sri Mahendranath Das alias Sri Gobinda Das v. State of Assam while confirming the highest penalty of law imposed on him.
59. Therefore, the result is that the Criminal Appeal preferred from Jail by the appellant is dismissed being devoid of any merit and the Death Reference under Section 366, Cr.P.C. made by the learned Additional Sessions Judge, Koraput (Jeypore) for confirmation of death sentence is disposed of in the light of discussions made above.
60. We express our appreciation of the assistance rendered by Shri C. Ananda Rao, learned counsel for the appellant and Shri P. K. Mohanty, learned Additional Government Advocate for the State, B.P. Das, J.
I agree.