Orissa High Court
Sanjay Nayak vs State Of Orissa on 30 September, 2011
PRADIP MOHANTY, J & B.K.NAYAK, J.
JCRLA NO.46 OF 2002 (Decided on 30.09.2011)
SANJAY NAYAK ........Appellant.
.Vrs.
STATE OF ORISSA ... ....Respondent.
PENAL CODE, 1860 (ACT NO.45 OF 1860 ) - S.300.
For Appellant - Mr. B.K.Mishra, Advocate
For Respondent - Mr. B.P.Pradhan
Addl. Govt. Advocate
PRADIP MOHANTY, J.In this jail criminal appeal, the appellant challenges the judgment and order dated 17.08.2002 passed by the learned Additional Sessions Judge, Bhanjanagar-Aska, Bhanjanagar in Sessions Case No.12 of 2000 (S.C.132/2000 GDC) convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life for having committed murder of his wife Sujata.
2. Informant Bijay Kumar Pradhan is the father of the deceased Sujta and father-in- law of the accused-appellant. Fifteen days prior to the date of occurrence the appellant had returned from Surat, the place of his service, to the house of the informant along with his wife (deceased Sujata) and their female baby. On 18.11.1999 at about noon the informant and his wife were in their field and the accused-appellant, his wife (deceased) and their female baby were in the house of the informant. At about 3.00 P.M., the informant came to his house for taking a bucket to water his land and saw the front door of his house had been closed from inside. He entered inside the house by breaking open the door and found his daughter lying dead in a pool of blood and her female child came crying towards him. He also noticed that the radio was on and the backside door of the house was open. But, he did not find the accused-appellant in the house. He immediately informed the police over phone and on their arrival, he submitted a written report scribed by one Santosh Kumar Mohanty. The A.S.I. of Balipadar Out-post who received the F.I.R. sent the same to Buguda Police Station for registration and took up investigation of the case. During investigation he held inquest over the dead body and sent the same to the S.D. Hospital, Bhanjanagar for post-mortem examination, prepared the spot map and examined the witnesses. He seized the blood stained weapon, sample earth, bloodstained wearing apparels of the deceased. He arrested the accused- appellant and seized his wearing apparels. He sent the seized articles for chemical examination and on completion of investigation submitted charge-sheet against the accused-appellant.
3. The plea of the appellant is one of complete denial and false implication. His specific plea is that he returned to his father-in-law's (informant's) house from Surat along with his wife and the child together with Rs.5,000/- and entrusted the said amount 2 to his father-in-law. As his father-in-law spent the same, out of anger he left the house of his father-in-law leaving his wife and child. On the way he met his mother-in-law and told her that he was going to his house.
4. The prosecution in order to prove the charge has examined as many as 12 witnesses including the I.O. and the doctor and exhibited 10 documents. Defence has examined one witness on its behalf.
5. The learned Additional Sessions Judge, who tried the case, on assessment of the evidence on record convicted the accused-appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life inter alia taking into consideration the circumstantial evidence such as last seen theory and the conduct of the accused- appellant who absconded from the spot immediately after the occurrence.
6. Learned counsel for the appellant submitted that there is absolutely no direct evidence to connect the appellant with the crime. Last seen theory and the conduct of the appellant are the two incriminating circumstances on the basis of which the appellant has been found guilty by the trial court. Evidence of the witnesses regarding the deceased and the appellant having been last seen together does not appear to be clear, consistent and conclusive. Merely because two persons were found together at a particular time and some time thereafter one of them found dead, the inevitable conclusion cannot be that the other is the author of the crime. In absence of any other evidence pointing to the guilt of the appellant, evidence of last seen together is not sufficient. He further submitted that so far as absconding of the accused-appellant from the spot is concerned, it is clear from the evidence of the parents of the deceased (P.Ws.5 and 6) that prior to the occurrence the appellant was proposing to go to his village. Furthermore, if he had intention to abscond he would not have been present in his village wherefrom he was arrested by P.W.11. In cross-examination P.W.11 admitted that prior to the arrest of the appellant he had gone to his village and did not ask the villagers as to where the appellant had gone. There is nothing on record to show that by the time the appellant was arrested, he was aware about the death of his wife. Under such circumstances, the conduct of the appellant cannot be doubted, as has been done by the trial court, for not returning to his father-in-law's house to see his deceased wife. He also submitted that the circumstances relied on by the prosecution are neither fully established nor consistent with the hypothesis of the guilt of the appellant. As such, the appellant is entitled to be acquitted on benefit of doubt.
7. Mr. Pradhan, learned Additional Government Advocate vehemently contended that from the evidence available on record it is established that there was a quarrel between the appellant and the deceased on the date of occurrence for money. It transpires from the evidence of P.Ws.5 and 6 that on the date of occurrence the deceased and the appellant were seen together by them when they left for field at about 12.00 noon. According to P.W.10, the appellant was seen by him at about 2.00 PM when he came out of the house of P.W.6 having his wearing apparels drenched and seeing P.W.10 he again retreated into the house. So, through the evidence of P.Ws.5, 6 and 10, the prosecution has been able to establish that at the time of occurrence the deceased was in the company of the appellant. He also contended that the conduct of the appellant, who absconded from the house of P.W.6 soon after the death of the deceased, further strengthens the case of the prosecution that he was the author of the 3 crime. He lastly contended that all the links of the chain of the circumstantial evidence are established by the prosecution and, therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial court.
8. Perused the LCR. This is a case where there is at all no direct evidence to connect the appellant with the murder of the deceased. The prosecution case is entirely based on the circumstantial evidence. P.Ws.1, 2 and 3 are respectively witnesses to the seizure of a knife, the seizure of blood and the inquest held over the dead body of the deceased. P.W.4 is the brother of the deceased and brother-in-law of the appellant. In his examination-in-chief he stated that on the date of occurrence at about 3.00 P.M. he returned home from the college and found his deceased sister lying dead in the house with bleeding stab injury on either side of her neck. On being told by his father (P.W.6), he went to the field and called his mother (P.W.5). In cross-examination, he admitted that the appellant had married his sister about two years prior to her death. During that period the appellant with his sister might have visited his house three to four times. To his knowledge, they were leading a peaceful life. P.W.5, the mother of the deceased, in her examination-in-chief stated that the appellant had married her deceased daughter about two years before her death. On the date of occurrence her husband (P.W.6) went to the field and informed her to come there along with the labourers. Eighteen days prior to the date of occurrence the appellant, her deceased daughter and grand daughter of one and half years old had come to her house from Surat. On the date of occurrence she and P.W.6 went to the field along with the labourers leaving the appellant, the deceased and their female child in the house. At about 3.00 P.M., P.W.6 left for home to bring a bucket for watering the land. About 3.30 P.M., her son (P.W.4) went to the field and informed her that the deceased was killed. She returned home and found the deceased lying dead in a pool of blood in their house with stab injuries on both sides of her neck. The appellant was found absconding. In cross-examination, she admitted that to her knowledge after the marriage the deceased and the appellant were leading a peaceful conjugal life. She also admitted that during their stay in her house they lived peacefully except for one day. On the day of incident in the morning she found the appellant quarrelling with the deceased demanding money from her. On that day the appellant was proposing to go to his village. She advised him to return in the evening. On the day of incident about 12.00 noon when she and P.W.6 were in the house, the appellant left their house on a cycle informing them to go to his village. On her return from the field she found the wooden almirah, which was not locked, was opened and the clothes inside it lying helter-skelter on the floor of their house. The appellant returned about 1.30 PM on the date of the incident when she was preparing to go to the field. P.W.6 is the father of the deceased and father-in-law of the appellant. In his examination-in-chief he stated that on 01.11.1999 the appellant with the deceased and grand daughter had come to their house. On 18.11.1999 at about 7.00 A.M. when he was preparing to go to the field with plough he found the appellant quarrelling with the deceased for money. The deceased informed him that the appellant requiring money for his expenses which she had not and he (P.W.6) also did not have that amount. About 12.00 noon he returned from the field and again proceeded there instructing P.W.5 to come with the labourers. At that time the appellant was in their house. Some time after P.W.5 followed him with the labourers. About 3.00 P.M. he came back to his house to take a bucket to water the Padar and found the front door was closed from inside and the radio was blaring. He called the appellant, but got no response. He gave a kick on 4 the door as a result of which the latch was broken and the door opened. His grand- daughter rushed towards him crying. He found the deceased lying on the floor in a pool of blood. The backyard door of the house was open. He found all the articles including clothes kept inside one wooden almirah and steel almirah lying scattered on the floor. He found one deep bleeding wound on the left side neck and three bleeding wounds on the right side neck of the deceased. P.W.4 came from the college and he told him to bring P.W.5 from the field as the appellant had killed the deceased. From the Panchayat Office he made a phone call to Balipadar Outpost and the police came at about 5.00 P.M. On arrival of police he handed over the written report scribed by P.W.7 on his dictation. Ext.4 is the said written report. Police made inquest over the dead body of the deceased in his presence and he put his signature thereon. Ext.3/2 is his signature on the inquest report. In cross-examination, he admitted that to his knowledge the deceased and the appellant were leading a peaceful conjugal life. When he proceeded to the field in the afternoon, the appellant was present in their house. P.W.7 is a co- villager. He stated that on 18.11.1999 on the dictation of P.W.6, he scribed Ext.4 and Ext.4/2 is his signature thereon. He also stated that on 19.11.1999 in his presence police seized a piece of blood stained cement from the floor of the house of P.W.6 under seizure list Ext.2 and Ext.2/2 is his signature thereon. In cross-examination, he admitted that he was not examined by police regarding scribe of the F.I.R. P.W.8 is the doctor who conducted post-mortem examination on the dead body of the deceased and found the following external injuries:
"1. Blood was coming from both the nostrils and blood-stains were found all over the body.
2. Antemortem imprint (pressure) abrasion on left side of the neck 3" x 1", 2" x 1" and 3"
x 1" respectively almost parallel to each other from below the above.
3. Antemortem penetrating lacerated injury on left side of neck 1" x 1" x 1" almost continuous with the imprint abrasion 3" x 1".
4. Penetrating lacerated injury on right mastoid region of the skull 1" x 1" x 1".
5. Two punctured injuries on the upper part of the front side of the neck.
6. Abrasion on the front of the right side of the chest and on the middle part of right ear 5" x 2" and ½" x ½" respectively.
7. Ill-defined bruise on right tempo-parietal region of the skull 2" x 2"."
On dissection he found the following injuries.
"(i) Fracture of Rt. Temporal region of the skull with intra cerebral haemorrhage.
(i) On dissection of the neck tear of left carotid artery with congestion of pere arterial area, so also congestion of all the structures of neck."
He opined that the death was due to head injury and haemorrhagic shock caused within 24 to 36 hours. Ext.5 is the post-mortem report and Ext.5/1 is his signature. He 5 also opined that the injuries found on the body of the deceased could be possible by the knife, which was produced before him by the police. P.W.9 is the A.S.I. of Police of Balipadar Outpost. He deposed that on 18.11.1999 at about 6.00 PM he got information over telephone from P.W.6 about the death of his daughter. At about 8.30 PM he arrived at the occurrence village and there P.W.6 handed over the written report (Ext.4) to him. He sent Ext.4 to the O.I.C. Buguda P.S. for registration and took up investigation. During the course of investigation, he examined P.Ws.5 and 6, went inside the house of P.W.6 and found the dead body of the deceased lying on the floor. As it was night, he could not make further investigation. On the next day, i.e., on 19.11.1999 he again went to village Banka, examined P.W.4, prepared the spot map (Ext.7) and in presence of the Executive Magistrate-cum-B.D.O., Belaguntha as well as the witnesses he held inquest over the dead body of the deceased identified by P.W.6 and prepared inquest report Ext.3. He sent the dead body for post-mortem examination. In cross-examination he admitted that he made station diary entry after receiving telephonic message. He found the deceased lying on the floor of the first pucca room. He found some clothes lying scattered and a battery operated radio was kept on the shelf. P.W.10 is a co- villager. He stated that on the date of occurrence at 2.00 P.M. in the after-noon while he was returning home from the field took rest on the verandah of the house of one Madhusudan Pattnaik which is in front of the house of P.W.6. He saw the appellant came out from the house of P.W.6 having his wearing apparels drenched. The moment the appellant saw him, he again retreated into the house. After some time P.W.6 came, entered into his house and came out shouting that the deceased was killed. Then he along with others went to his house and saw the deceased lying dead in a pool of blood inside the outer house. In cross-examination, he admitted that while he was sitting on the verandah of Madhusudan Pattnaik, he did not find anybody going or coming on the road. He also admitted that P.W.6 is his uncle in village courtesy. They are of the same caste, but not relatives. P.W.11 is the Officer-in-Charge of Buguda Police Station who received Ext.4 from P.W.9 and registered a case. He took charge of the investigation from P.W.9 on 19.11.1999 at 2.00 PM. He examined some witnesses and seized one blood-stained knife from the house of P.W.6. On 30.11.1999 he arrested the appellant and forwarded him to court on the same day. On 20.12.1999 he handed over charge of investigation to S.I. A. K. Mohanty (P.W.12) on his transfer. In cross-examination he admitted that prior to the arrest of the appellant, he had gone to village Madhabarida in search of the appellant but did not find him. He did not ask anybody in that village as to where the appellant had gone. P.W.12, who took up investigation from P.W.11, deposed that on 25.03.2000 he sent some of the seized articles to R.F.S.L. Berhampur through the S.D.J.M., Bhanjanagar. He made query to the doctor (P.W.8) by sending a knife to him for examination and opinion. After completion of investigation, he submitted the charge-sheet. Ext.10 is the report of the Chemical Examiner.
Defence has examined one Ranjit Goud as D.W.1 in support of its plea. He deposed that on the date of occurrence he had been to the house of P.W.6 to give Rs.500/- to the appellant towards his fare to go to Surat. His wife (deceased) told him that appellant had already left for his village as he reached late. In cross-examination he admitted that he reached the house of P.W.6 at 2.00 P.M. and did not find anybody except the wife of the appellant and she told him that the appellant had left the house 15 minutes prior to his arrival.
69. The analysis of evidence made above would go to show that there is no direct evidence to connect the appellant with the murder of the deceased. The trial court has convicted the appellant solely basing on the circumstantial evidence. The circumstances relied upon by the trial court are; the quarrel between the appellant and the deceased in the morning of the occurrence day, the last seen theory and the conduct of the appellant. It may be stated that where there is no direct evidence and the case is based solely on circumstantial evidence, the prosecution must prove each circumstance beyond reasonable doubt and the circumstances so proved must form a complete chain without giving scope to any other hypothesis and should be consistent only with the guilt of the accused. In other words, all the circumstances must form an unbroken chain leading to the only conclusion of the guilty of the accused. Due care must be taken in evaluating circumstantial evidence and while doing so the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof.
10. Keeping the aforesaid in view, this Court proceeded to consider each of the circumstances referred to above. As regards quarrel between the appellant and the deceased, the trial court has relied upon the evidence of P.Ws.5 and 6. On threadbare scanning of the evidence of P.Ws.5 and 6, this Court finds that P.W.5 in cross- examination has replied to a Court question that on the date of incident in the morning she found the appellant quarrelling with the deceased demanding money from her. But, in her examination-in-chief she has not uttered a single word about such quarrel. Even she had not stated to the police about any such quarrel in her statement recorded under Section 161, Cr.P.C. and for the first time in cross-examination she disclosed about the same. P.W.6 has not stated anything about the quarrel in the F.I.R., although allegedly the quarrel ensued in the morning. P.W.4, the brother of the deceased, has not stated a single word about the quarrel between the deceased and the appellant. Rather P.Ws.4, 5 and 6 have stated in their evidence that the appellant and the deceased were leading a peaceful life. In face of the above evidence, it cannot be believed that on the date of occurrence there was a quarrel between the appellant and the deceased for money. So far as absconding of the appellant from the spot is concerned, it is clear from the evidence of the prosecution witnesses that on the date of incident the appellant was proposing to go to his village. P.W.11, the Investigating Officer, stated that he arrested the appellant from his village Madhabarida on 30.11.1999 and that he had gone to that village in search of the appellant prior to his arrest but did not ask anybody in the village as to where the appellant had gone. From his evidence, it reveals that the appellant was very much present in his village from the date of incident, i.e., 18.11.1999 till the date of arrest, i.e., 30.11.1999. P.W.5, who is none else but the mother of the deceased, in her evidence stated that on the date of occurrence the appellant was proposing to go to his village and she advised him to return in the evening. She further stated that on the date of incident at about 12.00 noon when both she and P.W.6 were in their house, the appellant left for his village informing them. From the above evidence of P.W.5, it is crystal clear that on the date of incident at about 12.00 noon the appellant left for his village on a cycle in presence of P.Ws.5 and 6. From the evidence of the I.O. (P.W.11), who arrested the appellant from his village, it is inferred that there was no specific search made by him about the appellant. In the face of the above evidence, it cannot be said that the appellant had tried to escape from the course of justice and disappear from the spot. Furthermore, if the appellant had an intention to flee away, he would not have been available in his village for being arrested. Therefore, merely because the appellant 7 was not found in the occurrence house, his conduct cannot be doubted and such conduct of the appellant will have no assistance to the prosecution.
11. So far as last seen theory is concerned, the trial court has placed reliance upon the evidence of P.Ws.5, 6 and 10. On careful scrutiny of the evidence of these three witnesses, this Court finds that when P.W.6 left for the field at about 12.00 noon instructing his wife (P.W.5) to come with the labourers, at that time the appellant, the deceased and P.W.5 were in the house. So, it cannot be construed that only deceased and appellant were there in the house when P.W.6 left for the field. As such, P.W.6 at no stretch of imagination can be regarded as a witness to last seen theory. P.W.5. although in her examination-in-chief stated that one and half hours after her husband, she with labourers went to the field and at that time the appellant along with her deceased daughter and grand-daughter remained in the house, in cross-examination she admitted that on the date of incident at about 12.00 noon when she and her husband were in the house, the appellant on a bi-cycle left their house informing them to go to his village. Just thereafter she again admitted to a Court's question that the appellant returned about 1.30 PM on the same day of the incident when she was preparing to go to the field. If the above statements of P.W.5 are read together, it can be safely inferred that she gives different statements at different stages with regard to presence of the appellant along with the deceased at the time of occurrence and as such it is difficult to place reliance on such prevaricating statement. The next witness to last seen theory, according to the trial court, is P.W.10. He testified that on the occurrence day at about 2.00 PM while sitting on the verandah of a house situated in front of the house of P.W.6, he saw the appellant coming out from the house of P.W.6 wearing drenched clothes and the moment he (P.W.10) saw him, the appellant again retreated into the house. This witness in cross-examination admitted that the house where he was sitting is not just in front of the house of P.W.6 but 3 to 4 houses apart from the house of P.W.6. On the face of this evidence, it is difficult to believe that P.W.10 could have seen the appellant coming out of the house of P.W.6. It further appears that P.W.10 did not state this fact to P.W.6, when the latter informed the matter to police. There is also nothing on record to show that P.W.10 disclosed this fact either to any of the family members of the deceased or any of the co-villagers. Non-disclosure of this fact before anybody else itself speaks volumes about the truthfulness of P.W.10. Above all, P.W.10 cannot be a witness to the last seen theory, as he does not state that he saw the appellant and the deceased together. At this juncture, it is relevant to glance through the evidence of D.W.1, who specifically stated that on the date of occurrence he had been to the house of P.W.6 to give Rs.500/- to the appellant towards his fare to Surat and his wife (deceased) told him that the appellant had already left the village. It is well settled that the evidence of a defence witness deserves equal consideration as that of a prosecution witness. For all these reasons, the last seen theory introduced by the prosecution cannot be believed under any stretch of imagination. Even otherwise also if the last seen theory is believed, the conviction of the appellant cannot be sustained, since there is no other incriminating circumstance proved by the prosecution. In this connection, it is worthwhile to refer to a judgment of the apex Court in Inderjit Singh and another v. State of Punjab, AIR 1991 SC 1674 wherein it has been ruled that when there is no direct evidence to connect the accused, the only circumstance that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused.
8For the discussions made above, this Court arrives at the conclusion that the prosecution has failed to establish all the circumstances and the circumstances so established do not form an unbroken chain leading to the only conclusion that it is the appellant and appellant alone who committed the murder of the deceased.
12. In the result therefore, the appeal is allowed by setting aside the impugned judgment of conviction and sentence passed by the trial court in Sessions Case No.12 of 2000 (S.C.132/2000 GDC) and the appellant is acquitted of the charge.
Appeal allowed.