Orissa High Court
Anupram Yadav vs State Of Orissa on 23 September, 2020
Equivalent citations: AIRONLINE 2020 ORI 101
Author: B.P. Routray
Bench: S.K. Mishra, B.P. Routray
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No. 141 of 2004
From the judgment and order dated 22.01.2004 passed by the learned
Additional Dist. & Sessions Judge, Nuapada in Sessions Case No. 74/9
of 2003.
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Anupram Yadav ...... Appellant
-Versus-
State of Orissa ...... Respondent
For appellant : Mr. Satyabhusan Dash, Advocate.
For respondent : Mr. Janmejaya Katikia,
Additional Government Advocate.
PRESENT:
THE HONOURABLE SHRI JUSTICE S.K. MISHRA
AND
THE HONOURABLE SHRI JUSTICE B.P. ROUTRAY
Date of Judgment :23.09.2020
B.P. ROUTRAY, J. This appeal has been preferred by the sole appellant
against his conviction and sentence of imprisonment of life under
Section 302 of IPC passed by the learned Additional Sessions Judge,
Nuapada in Sessions Case No.74/9 of 2003 dated 22.01.2004.
2. The appellant was charged for murder simplicitor of one
Bimala Bai Sahoo (hereinafter called as 'the deceased'). Prosecution's
case in nutshell is that, the appellant and P.W.2 are two brothers and
the deceased is the wife of P.W.1. P.Ws.2 and 1 were in good
relationship. However the appellant was not pulling well with the P.W.2,
his elder brother. Appellant suspected that his elder brother (P.W.2) had
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illicit relationship with the deceased and doubted that she was
antagonizing his brother (P.W.2) against him. On the fateful day, during
noon time, when the deceased had gone near the field of the appellant to
attend the call of nature, the appellant finding her alone, severed her
head by means of an axe (M.O.I). The body and the head were lying
severed in the field of P.W.2. The F.I.R. was lodged by P.W.1 (husband of
the deceased) stating that when he returned to his house without finding
the deceased in the house, he went for searching her at around 2.00
p.m. and ultimately found the body and head of the deceased laying in
the paddy field of P.W.2. Upon registration of the FIR, investigation was
taken up by P.W.10 (the Investigating Officer), the then O.I.C. of
Nuapada P.S. He held the inquest over the dead body and head,
prepared the spot map, and arrested the accused (appellant) on the next
day. He also seized the weapon of offence i.e. axe (M.O.I) as per leading
to discovery made by the appellant.
3. Prosecution examined 12 witnesses in total and amongst
them most important are, P.W. 1, 3, 10 & 8. P.W.1 is the husband of
the deceased, P.W.3 is the wife of the appellant, P.W.10 is the I.O., and
P.W.8 is the Medical Officer, who conducted the postmortem
examination. These four witnesses are the main witnesses for the
prosecution case. Besides, 17 documents have been marked on behalf
of the prosecution. On the other hand defense did not lead any evidence
either oral or documentary. The defense plea was complete denial and
false implication. The learned Addl. Sessions Judge, after analyzing the
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evidence brought on record found the appellant guilty of murder of the
deceased. It is seen that, the conviction is based completely on
circumstantial evidence of which extra judicial confession has played a
vital link. However, before going deep into the impugned judgment, the
nature of death of the deceased needs to be seen at the outset since this
is a case of murder.
4. The Medical Officer who conducted post-mortem
examination has been examined as P.W. 8 and the P.M. report is Ext.9.
Said P.W.8 duly examined the headless body as well as the severed head
and opined that the same was of the deceased. The evidence of P.W.8
reveals four external injuries around the neck severing the head from the
body and two more injuries on the body below both side of the chest. All
such injuries had impacted the death of the deceased due to hemorrhage
and shock resulted from cutting of the great vessels of both side of the
neck, spinal cord, trachea and vertebra by multiple incised injuries. It is
also opined by P.W.8 that all the injuries were homicidal in nature.
Therefore, from the evidence of P.W.8, there cannot be any second
opinion than the homicidal nature of death of the deceased.
5. There is no eye witness to the occurrence and the case is
based completely on circumstantial evidence. As a matter of fact in the
evidence laws, there is no difference between the 'direct evidence' and
'circumstantial evidence'. The difference is only regarding standard of
proof. Here, it is needed to discuss certain settled principles of the cases
of circumstantial evidence.
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6. In the case of Hanumant Govind Nargundkar & Anr. Vs.
State of Madhya Pradesh, reported in AIR 1952 SC 343, the Apex
Court observed as under:
".........It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established,
and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused............."
Later in the case of Sharad Birdhichand Sarda Vs. State
of Maharashtra, reported in AIR 1984 SC 1622, the Apex Court has
observed :
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical but
a legal distinction between "may be proved" and "must be
or should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between 'may
be' and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
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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.
xxx xxx xxx
179. We can fully understand that though the
case superficially viewed bears an ugly look so as to
prima facie shock the conscience of any court yet
suspicion, however great it may be, cannot take the place
of legal proof. A moral conviction however strong or
genuine cannot amount to a legal conviction supportable
in law.
180. It must be recalled that the well established
rule of criminal justice is that "fouler the crime higher the
proof". In the instant case, the life and liberty of a subject
was at stake. As the accused was given a capital
sentence, a very careful, cautious and meticulous
approach was necessary to be made."
On examination of record and the impugned judgment, it is
seen that the circumstances founding the conviction are, extra judicial
confession, leading to discovery of the weapon of offence and wearing
apparels having blood stains, and the motive of the appellant.
7. First, regarding extra judicial confession, the same is seen
founded upon the evidence of P.Ws. 3 and 6. P.W.6 has stated that
"before myself and villagers, the accused had admitted to have committed
murder of the deceased". This statement of P.W.6 made in the
deposition, is appearing unreliable for lack of details. He has not stated
when and where the appellant confessed the same before him, who else
were present there specifically and what was the occasion for the
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appellant to say so before P.W.6. Therefore, no reliance can be placed
on this statement of P.W.6.
8. P.W.3 is the wife of the appellant and her status as wife of
the appellant is not disputed though she has stated in her cross-
examination that she is the 2nd wife of the accused-appellant. No
material is also found on record not to hold P.W.3 as the wife of the
appellant. Therefore, all such statements so stated by P.W.3 in course of
her deposition about the confession of murder by the appellant, were
apparently made by the appellant before her being she is his wife. Here
the status of P.W. 3 as the wife of appellant is admitted by prosecution.
Now the question does arise, whether such a communication made
between the husband or wife during marriage is admissible in evidence,
and if so, what are those requirements to be satisfied before that?. In
this regard, Section 122 of the Indian Evidence Act, 1872 speaks as
follows:
"122. Communications during marriage.--No
person who is or has been married, shall be compelled to
disclose any communication made to him during
marriage by any person to whom he is or has been
married; nor shall he be permitted to disclose any such
communication, unless the person who made it, or his
representative in interest, consents, except in suits
between married persons, or proceedings in which one
married person is prosecuted for any crime committed
against the other."
9. The Supreme Court in the case of M.C. Verghese Vs. T.J.
Poonan & Anr., reported in (1969) 1 SCC 37, has made observations
that evidence on communications between the husband and wife during
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marriage is inadmissible in criminal proceedings. In the said case, the
father of the wife lodged prosecution against the husband alleging
offence of defamation. The contention of the husband was that the
communications in the letter sent by him to his wife is inadmissible in
evidence and expressly prohibited by law from disclosure. The said
contention was accepted by the District Magistrate and the husband was
discharged. The said discharge being set aside by the Sessions Court,
matter went to Kerala High Court, wherein the Kerala High Court set
aside the order of the Sessions Judge and restored the order of the
District Magistrate. The matter was again challenged before the Hon'ble
Supreme Court, wherein the Apex Court by referring to various decisions
of Queen's Bench as well as Madras High Court, have observed that the
communications between the husband and wife during marriage is
inadmissible in evidence. The relevant paragraphs of the said judgment
in the case of M.C. Verghese (supra) are quoted hereunder :
"6. In England the rule appears to be well settle- that except
in certain well defined matters, the husband and wife are
regarded as one and in an action for libel disclosure by the
husband of the libel to his wife is not publication.
In Wennhak case [(1888) 20 QBD 635] Manistry, J., observed:
...the maxim and principle acted on for centuries is still in
existence viz. that as regards this case, husband and wife are
in point of that as law one person."
The learned Judge examined the foundation of the
rule and stated that it was, after all, a question of public
policy or, social policy.
7. But the rule that husband and wife are one in the eye of
law has not been adopted in its full force under our system of
law and certainly not in our criminal jurisprudence.
8. In Queen Express v. Butchi [ILR 17 Mad 401] it was held
that there is no presumption of law that the wife and husband
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constitute one person in India for the purpose of the criminal
law. If the wife, removing the husband's property from his
house, does so with dishonest intention, she is guilty of theft.
9. In Abdul Khadar v. Taib Begum [AIR 1957 Mad 339] the
Madras High Court again held that there is no presumption of
law in India that a wife and husband constitute one person
for the purpose of criminal law, and therefore the English
common law doctrine of absolute privilege cannot prevail in
India.
10. It must be remembered that the Penal Code, 1860
exhaustively codifies the law relating to offences with which it
deals and the rules of the common law cannot be resorted to
for inventing exemptions which are not expressly enacted.
..... XXXX ...... XXXX .. .. .. ..
14. The section consists of two branches -- (1) that a married
person shall not be compelled to disclose any communication
made to him during marriage by his spouse; and (2) that the
married person shall not except in two special classes of
proceedings be permitted to disclose by giving evidence in
Court the communication, unless the person who made it, or
his representative in interest, consents thereto.
15. A prima facie case was set up in the complaint by
Verghese. That complaint has not been tried and we do not
see how, without recording any evidence, the learned District
Magistrate could pass any order discharging Poonan. Section
122 of the Evidence Act only prevents disclosure in evidence
in Court of the communication made by the husband to the
wife. If Rathi appears in the witness box to giving evidence
about the communications made to her husband, prima facie
the communications may not be permitted to be deposed to or
disclosed unless Poonan consents. That does not, however,
mean that no other evidence which is not barred under
Section 122 of the Evidence Act or other provisions of the Act
can be given.
16. In a recent judgment of the House of
Lords Rumping v. Director of Public Prosecutions [(1962) 3 All
ER 256] Rumping the in mate of a Dutch ship was tried for
murder committed on board the ship. Part of the evidence for
the prosecution admitted at the trial consisted of a letter that
Rumping had written to his wife in Holland which amounted
to a confession. Rumping had written the letter on the day of
the killing, and had handed the letter in a closed envelope to a
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member of the crew requesting him to post it as soon as the
ship arrived at the port outside England. After the appellant
was arrested, the member of the crew handed the envelope to
the captain of the ship who handed it over to the police. The
member of the crew, the captain and the translator of the
letter gave evidence at the trial, but the wife was not called as
witness. It was held that the letter was admissible in evidence.
Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and
Lord Pearce were of the view that at common law there had
never been a separate principle or rule that communications
between a husband and wife during marriage were
inadmissible in evidence on the ground of public policy.
Accordingly except where the spouse to whom the
communication is made is a witness and claims privilege from
disclosure under the Criminal Evidence Act, 1898 (of which
the terms are similar to Section 122 of the Indian Evidence
Act though not identical), evidence as to communications
between husband and wife during marriage is admissible in
criminal proceedings.
..... .. XXXX ...... XXXX .. .. ..
21. When the letters were written by Poonan to Rathi, they
were husband and wife. The bar to the admissibility in
evidence of communications made during marriage attaches
at the time when the communication is made, and its
admissibility will be adjudged in the light of the status at that
date and not the status at the date when evidence is sought to
be given in Court."
10. The Bombay High Court, in the case of Bhalchandra
Namdeo Shinde Vs. the State of Maharashtra, reported in (2003)
SCC Online Bombay 300: 2003(2) MahLJ 580, referring to the decision
of the Hon'ble Apex Court in the case of Ram Bharosey Vs. State of Uttar
Pradesh (AIR 1954 SC 704), has observed as follows:
".........In the said case, the actual communication between
the accused and his wife was held inadmissible under section
122 of the Indian Evidence Act but the acts of the husband
witnessed by wife are held admissible, as it has reference to
the acts and conduct, of the accused and not to any
communication made by the husband to his wife. Bearing in
mind the ratio in the case of Ram Bharosey (cited supra), we
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have to exclude the inadmissible part with regard to actual
communication between the appellant and his wife Jaishree
PW 1. However, what Jaishree PW 1 saw at the relevant time
is certainly admissible in evidence. Jaishree PW 1 saw the
appellant searching and collecting Kookari (Article 12) and
leaving the house with Kookari. This part of evidence is
certainly admissible in evidence. However, this much evidence
by itself is not sufficient to prove the complicity of appellant in
crime."
11. Now, returning back to the facts of the present case, the
status of P.W.3 as the wife of the appellant is not disputed and no
consent has been taken from the appellant in this regard while recording
her deposition. As seen from the language of Section 122, the same
provides bar as to the admissibility in evidence of communication made
during subsistence of marriage, which cannot be disclosed even, without
the consent of the spouse who made it, or his representative in interest,
except in the proceedings between such married persons or where one
spouse is prosecuted for any crime committed against the other. This
privilege under Section 122, read with Section 120 of the Indian
Evidence Act, though does not disqualify one spouse as a competent
witness against the other, but bars disclosure of all communications
made between them during subsistence of marriage. It is to be
remembered that the privilege is not to the spouse who is witness, but to
that other spouse who made the communication. Such communication
not necessarily be a confidential only, but applies to all. Therefore, the
courts are prohibited to permit the witness from making such disclosure
unless, first, the witness is willing to disclose, and secondly, the other
spouse against whom it is to be made has given his express consent.
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Here the oral evidence of P.W.3 Santabai goes to the extent that, when
she saw blood stains on the weapon (M.O.I) and the person of the
appellant, being asked by her, the appellant replied that he has
committed murder of the deceased by M.O.I. Therefore, in view of the
law enumerated in Section 122 of the Indian Evidence Act as well as the
principles enunciated in the aforesaid decisions, it bars admissibility of
the evidence of P.W.3 to the effect of her deposition regarding confession
of the appellant of committing murder of the deceased by M.O.I, but her
statement regarding other aspects is no way affected.
So, the link of extrajudicial confession in the chain of
circumstances is not established and the learned trial court has lost it's
sight from Section 122 before placing reliance on the above aspects.
12. Out of the remaining circumstances, the important one is
'leading to discovery of weapon of offence and blood stained wearing
apparels of the appellant'. In this regard, P.Ws. 4 and 5 have supported
the prosecution case. The weapon of offence i.e., the axe has been
identified as M.O.I and blood stained shirt and Lungi of the appellant as
M.Os.II & III. The evidence of P.Ws. 4 and 5 along with the evidence of
P.W.10 is seen trustworthy on this point. The cowshed wherefrom said
material objects were found, was in possession of the appellant as per
the evidence of P.W.11, the Amin of Tehsil Office and other witnesses,
viz. P.Ws.2, 3, 4, 5 & 10. M.O.I is found stained with human blood of
group 'O' whereas M.Os.II (shirt) & III (lungi) are though found with
human blood but without any opinion on grouping during the chemical
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examination. The chemical examination report has been marked under
Ext.16. So, except M.O.I, other two objects cannot be reasonably
connected to the guilt of the appellant.
13. So far as motive is concerned, it is the consistent evidence of
the prosecution witnesses that, there was previous enmity between the
appellant and P.W.2. The witnesses have stated that there was long
standing dispute between both the brothers, but the materials on record
is silent about the connection between P.W.2 and the deceased which
forms the basis of hostility between the appellant and the deceased. In
this regard, there is only one bare statement of P.W.3 made during her
cross-examination by the prosecution that she has made a statement
before the I.O. (P.W.10) that the appellant was opposing the relationship
of the deceased with P.W.2. But this is of no use for the prosecution
against the appellant. Because what is stated before the I.O. cannot by
itself be an evidence in court. It is important to point out here that even
if hostile relationship is established between the appellant and P.W.2,
but the same has nothing to do with the motive of the appellant to kill
the deceased. No relationship between P.W.2 and the deceased is found
on record to establish motive on the part of the appellant to kill the
deceased. Therefore, in absence of any material to this aspect, the
learned trial Judge has erred in taking motive as a circumstance against
the appellant.
14. Thus, from above discussions, it becomes clear that, except
the information leading to discovery of the weapon of offence relevant
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u/s. 27 of the Indian Evidence Act, all other circumstances discussed by
the trial court are not free from reasonable doubts. In a case where
evidence is of circumstantial in nature, each circumstance must be fully
established before drawing any conclusion there from. Here it would not
be out of place to have relook to the evidence of P.W.3. As discussed
earlier, by excluding the confessional part from her evidence, the
remaining part throws some light on post occurrence conduct of the
appellant that he was seen with blood stained axe (M.O.I) and blood
stains appearing on his wearing apparels. Bereft of some discrepancies
in this part of evidence of P.W.3 that she had not stated about M.O.I to
the I.O. during investigation, even if the same is added as one more
circumstance to that earlier circumstance useful u/s.27 of the Indian
Evidence Act, still the chain of circumstance is not found complete to
unerringly point towards the guilt of the accused. It is important to see
that not only the chain is complete but also that no reasonable ground is
left in support of innocence of the accused. Of course it is established
that blood stain marks of human origin have been found on the wearing
shirt and Lungi of the deceased (M.Os.II & III) and the axe (M.O.I) which
were discovered at his instance, but the same are definitely not sufficient
to clearly establish the guilt of murder of the deceased by the appellant
even though, as per the opinion of P.W.8, M.O.I could be the possible
weapon of offence in view of the nature of injuries found on the
deceased. But, it is repeated that, in our considered opinion, these
circumstances cannot be said completing the chain of circumstances
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unerringly pointing the guilt of the appellant leaving all possible
hypothesis except the guilt of the appellant.
15. Thus, prosecution case is not seen free from all reasonable
doubts and in view of the discussions made above, we are constrained to
hold that the prosecution has not satisfactorily established its case
beyond all reasonable doubts to clearly hold that the appellant had
committed the murder.
Therefore, for the reasons discussed above, we hold the
appellant not guilty of the charge of murder and accordingly he is
acquitted thereof. The appellant be set at liberty forthwith, if his
detention is not required in any other case.
..........................
B.P. Routray, J.
S.K. Mishra, J. I agree.
......................... S.K. Mishra, J.
Orissa High Court, Cuttack. The 23rd September, 2020/CRB