Orissa High Court
Mahendra Bhoi vs State Of Odisha on 23 November, 2021
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.616 of 2017
(From the judgment dated 24th July, 2017 passed by Shri M.R.Barik,
Sessions Judge, Sundargarh in Sessions Trial No.176 of 2012.)
Mahendra Bhoi ...... Appellant
Versus
State of Odisha ...... Respondent
Advocate(s) appeared in this case :-
For Appellant : Mr. B.B.Behera, Advocate
For Respondent : Mr.J.Katikia, A.G.A
CORAM :
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
rd 23 November, 2021 B.P. Routray,J.
1. The Appellant has been sentenced to life imprisonment upon his conviction by the learned trial court for the offence of murder.
2. The deceased is the second wife of the Appellant. They are residents of village Kulda under Hemgir Police Station. Along with them, the first wife of the Appellant namely Golapi, their children Pinkey (P.W.3), Ashok (P.W.4), Suraj (P.W.5), the sister of the CRLA No.616 of 2017 Page 1 of 9 Appellant namely Sashi (P.W.6), mother of the Appellant namely Ahalya (P.W.8) and another daughter through Golapi were residing.
3. On 31st May, 2012 in the morning at about 8 A.M. the Appellant called the deceased to go to forest for bringing firewood. The deceased denied going with the Appellant and thus the quarrel ensued. The Appellant out of anger dealt a blow on the backside head of the deceased resulting bleeding injury. Then the Appellant left the house. Hearing the hue and cry of members of the family, some co-villagers came to the house of the Appellant and found the deceased lying in the house unconsciously. They shifted the deceased to nearby hospital where the doctor declared her as broad dead. One of the co-villagers namely, Gulu Majhi lodged the F.I.R. under Ext.9, which was registered as Hemgir P.S. Case No.66 dated 31st May, 2012 by the Inspector-in-Charge (P.W.19). The said P.W.19 took up the investigation and arrested the accused on 1st June, 2012 i.e., on the next day. Upon completion of investigation, he submitted the charge-sheet on 14th August, 2012 for the offence under Section 302 of the I.P.C.
4. In order to prove the charge, prosecution examined twenty witnesses and relied upon sixteen documents marked as Exts. 1 to 16. CRLA No.616 of 2017 Page 2 of 9 The prosecution also produced seven material objects to substantiate their case.
5. The Appellant faced the trial by denying the charge. He also claimed false implication.
6. Prosecution projected P.Ws.3, 4, 5 and 8 as the eyewitnesses of the occurrence. They are the children of Appellant and deceased and mother of the Appellant. But they did not support prosecution version as the eyewitnesses and resiled from their earlier statement made before the police. Though the public prosecutor cross-examined them but nothing relevant towards their eye-witnessing of the assault could be elicited.
7. In absence of any direct evidence brought by the alleged eyewitnesses, learned trial court by relying upon circumstantial evidence, convicted the Appellant for causing the murder of his wife and sentenced him to life imprisonment. As seen from the impugned judgment, the circumstances relied upon by the trial court are that, discovery of the axe (M.O.I) given by the Appellant while in police custody, the bloodstains present on that M.O.I., opinion of the doctor regarding possibility of causing injury by the said weapon and failure of the Appellant to explain the reasons of death of the deceased. CRLA No.616 of 2017 Page 3 of 9
8. Before examining such circumstances leading to conviction of the Appellant, it is made clear that no dispute has been raised by either party with regard to the nature of death of the deceased. The Appellant never disputes the homicidal nature of death of the deceased and the injuries sustained by her. At the same time it is seen from the evidence of the doctor, P.W.16, who conducted postmortem examination over the dead body of the deceased, that, he noticed four injuries, out of which two injuries were bruises present on the buttock of the deceased. Out of other two injures, one is laceration of size 1"x 1/2" x 1/4" over the right parietal region and other one is an incised wound of size 2" x 1/2" x 1/2"
over the right occipital region of the head. In the opinion of P.W.16, the death is due to shock and bleeding caused by the incised wound and lacerated injury. It is thus otherwise proved on record that the deceased died homicidal nature of death.
9. As per the statement of the I.O., P.W.19, the Appellant upon his arrest on 1st June, 2012 while in police custody confessed his guilt in presence of P.Ws.18 and 20 to have killed the deceased by M.O.I and further disclosed that he concealed the said M.O.I in the pocket of a stone heap near Chhaatenjora (a drain) near their village. Accordingly he led the police team and the witnesses to the said place of concealment and reaching there brought out M.O.1 from the heap of stones. Said CRLA No.616 of 2017 Page 4 of 9 M.O.I, found with stains of blood, was seized by P.W.19 in presence of P.Ws.18 and 20. The seizure list is Ext.8 and the disclosure statement of the Appellant is Ext.13. Looking to the evidence of P.W.18 in this regard, it is seen that he has stated that on 1st June, 2012 at about 4 to 4.30 P.M. when he was returning, police called him to village Kulda and by that time the Appellant was sitting inside the police jeep. The Appellant made the confession in the police jeep in his presence. But in the cross-examination, this witness has said that at Kulda Bus Stop police asked him and other witness (P.W.20) to follow their jeep and by that time he did not know the reason why the police called them. When they reached near the Jora, the Appellant led them to the spot and brought out M.O.I. So as per the statement of this witness what he admitted in the cross-examination that he was not a witness to the confessional or disclosure statement of the Appellant before M.O.I was discovered. Upon scrutiny of entire deposition of this P.W.18 suggests that he is a witness to the seizure of M.O.I only. He cannot be treated as a witness to the alleged disclosure given by the Appellant. His evidence cannot be used for anything more than the seizure of M.O.I. P.W.20, the other witness has not stated anything except admitting his signature on Ext.8, the seizure list. Thus his evidence is no way seen CRLA No.616 of 2017 Page 5 of 9 beneficial towards the alleged disclosure of the Appellant and consequential seizure of M.O.I.
10. Admittedly, the axe under M.O.I is a common weapon available in every house specifically of tribal people. P.W.19 has not taken the pain to explain the circumstances of arrest of the Appellant. If the evidence of P.W.8 is discarded with regard to the disclosure information given by the Appellant, the only evidence remains is the statement of the investigating officer himself. The question in such circumstance is, whether it would be safe to rely the evidence of P.W.19 as the leading circumstance for conviction of the Appellant?
11. The learned trial Judge has mentioned that stains of human blood found on M.O.I and the opinion of the doctor under Ext.7 about possibility of causing the injuries by said weapon are the connecting circumstances against the Appellant. It is not disputed that during chemical examination of M.O.I stains of human blood were noticed on the axe. But that blood stains has not been confirmed by grouping to be the blood of the deceased. The chemical examination report under Ext.16 speaks that no opinion about grouping can be derived on the said blood smear found on M.O.I. Therefore the conclusion of the trial court CRLA No.616 of 2017 Page 6 of 9 that the blood stains present on M.O.I connect the Appellant with the murder of the deceased is not found justified.
12. In addition to the presence of the bloodstains in the weapon, the presence of blood stains on the wearing lungi and shirt of the deceased, which were seized on production of the Appellant, and the failure on the part of the Appellant to explain the reasons of such blood stains over his wearing apparels has been considered by the trial court as an additional circumstance under Section 106 of the Indian Evidence Act. In the opinion of the learned trial Judge the failure of Appellant to explain the reasons for presence of blood stains on his wearing apparels as well as on the axe (M.O.I) discovered at his instance is a fact within his special knowledge and therefore the failure on his part to explain those circumstances are relevant under Section 106 of the Indian Evidence Act. The underlying principles to be remembered here that, before drawing an adverse inference against the accused for such facts within his special knowledge, the prosecution must establish the guilt of the accused and such burden on the prosecution under Section 101 of the Indian Evidence Act is no way reduced. Section 106 is an exception to Section 101 and cannot be attracted against the accused unless that initial burden of the prosecution is proved.
CRLA No.616 of 2017 Page 7 of 9
In the present case, it is not proved by prosecution that the human blood found on the wearing apparels of the accused is the blood of the deceased. As mentioned earlier, the bloodstains noticed on the axe as well as on the wearing apparels have not been established on record to be of the deceased only. The chemical examination report under Ext.16 speaks clearly on this aspect. When the blood patches or smears have not been proved to be that of the deceased, then drawing an adverse presumption against the Appellant is not permissible.
13. The conviction of the Appellant by the trial court is based on such weak pieces of evidence and the reasons given by the learned trial court to connect the Appellant in the alleged crime through the weapon under M.O.I and the wearing apparels under M.O.II and M.O.III are not found sufficient to establish the guilt.
14. As discussed earlier, the disclosure information given by the appellant about the weapon of offence through the Investigating Officer is very a weak piece of evidence to connect the Appellant in the alleged murder.
15. In view of such poor and shaky nature of evidence, the guilt of the accused cannot be founded. We are thus of the opinion that the prosecution has failed to establish the charge beyond all reasonable CRLA No.616 of 2017 Page 8 of 9 doubts. The Appellant is acquitted accordingly. It is directed to set him at liberty forthwith, if his detention is not required in any other case.
16. The seized material objects be destroyed after four months from today.
17. The appeal is allowed.
(B.P.Routray) Judge (Dr. S. Muralidhar) Chief Justice C.R. Biswal, Secy.
CRLA No.616 of 2017 Page 9 of 9