Orissa High Court
State Of Orissa And Etc. vs Nrusingha Charan Barik on 5 April, 1990
Equivalent citations: 1990CRILJ1676
JUDGMENT V. Gopalaswamy, J.
1. The prosecution case giving rise to the above-mentioned three appeals may be briefly stated as follows:
Accused Nrusingha Barik is a resident of village Ramakrishnapur and accused Kailash Barik is a resident of the neighbouring village Nahanga and both the villages are at a distance of about 3 kms. from village Dixitpada (within Salipur P.S. in Cuttack district) where deceased Swarnalata, an unmarried girl aged about 17 years, was residing with her mother. Accused Nrusingha is the deceased's father's sister' son. Swarnalata's father Golak Barik died about 10 years prior to the date of occurrence. Swarnalata's sister Pravabati (P.W. 22) was also residing in the same village Dixitpada with her husband Prafulla (P. W. 1). Accused Nrusingha used to frequently visit the houses of Swarnalata and Prafulla. About one year prior to the date of occurrence deceased Swarnalata was bitten by a dog and in spite of treatment at Kendrapara and; Cuttack, she was not completely cured. On 20-12-81, a Sunday, accused Nrusingha came to Dixitpada and along with the deceased's sister (P. W. 22) and brother-in-law (P. W. 1) went to witness "Pala" where he met the deceased and her mother (P. W. 29) and during the course of his conversation with them P. W. 29 requested accused Nrusingha to take the deceased to Sisua for her treatment, but he refused the request stating that he had to go to Keonjhar. On the morning of 21-12-81 Swarnalata came to the house of her sister (P. W. 22) at about 8 a.m. and accused Nrusingha also came there about one hour after and on his suggestion deceased gave her Mali earrings and in exchange borrowed the gold earrings of her sister (P. W. 22) and wore them. Deceased left her sister's house stating that she would be going to Sisua. Some time after accused Nrusingha also left the house of P. W. 22 stating that he would go to Keonjhar. On the morning of 23-12-81 P.W. 5, found the dead body of a girl, whose identity was not known to him, lying on the bank of Maijora river. He made a written report (Ext. 6) about it at the Mahanga Police Station. P. W. 2 of village Ostapur saw the dead body and identified it to be of Swarnalata and then he went and informed about it to P.W. 1. On the basis of the report Ext. 6 given by P. W. 5 the Police proceeded with the investigation of the case. Investigation disclosed the complicity of accused Nrusingha and accused Kailash Chandra Bari in the commission of the murder of Swarnalata: After completion of the investigation, the police filed a charge-sheet against accused Nrusingha and Kailash under Sections 302, 376 and 201, I.P.C. read with Section 34, I.P.C. on the allegations that in furtherance of their common intention with the accused persons after committing rape on the victim girl, killed her and caused the evidence of the commission of the murder to disappear by throwing away the body of the deceased into the river.
2. In the Court of the Additional Sessions Judge, Cuttack, both the accused persons stood their trial facing charges under Sections 302/34, 376/34 and 201/34, I.P.C, The learned Additional Sessions Judge after considering the entire evidence in the case passed judgment acquitting both the accused persons of the charge under Section 376, I.P.C. and while holding accused Nrusingha guilty of the offences under Sections 302 and 201, I.P.C, acquitted the other accused of the offences under Sections 302 and 201, I.P.C. as well, but convicted him of the offence under Section 411, I.P.C. The learned Additional Sessions Judge sentenced the accused Nrusingha to undergo imprisonment for life under Section 302, I.P.C. and did not impose any separate sentence under Section 201, I.P.C. For the offence under Section 141, I.P.C. accused Kailash was sentenced to undergo rigorous imprisonment for a period of three years. Being aggrieved by the judgment convicting him under Sections 302 and 201, I.P.C. and sentencing him to undergo imprisonment for life accused Nrusingha preferred Criminal Appeal No. 92 of 1983. Being aggrieved by the order of conviction and sentence passed against him under Section 411, I.P.C. accused Kailash preferred Criminal Appeal No. 35 of 1983. State of Orissa preferred Government Appeal No. 26 of 1983 urging that accused Nrusingha ought to be convicted under Section 376, I.P.C. as well. Thus the above three appeals arise out of the same judgment and the same are, therefore, disposed of by this common judgment.
3. The plea of the accused persons before the trial Court was one of denial. No witness was examined on behalf of the accused persons in support of their plea.
4. Prosecution has examined in all thirty-four witnesses to prove its case. P. W. 29 is the mother of deceased Swarnalata. P. W. 16 is an unmarried sister of the deceased. By the relevant date P. Ws. 16 and 29 and the deceased were residing in the same house. P. W. 22 is another sister of the deceased and she is the wife of P. W. 1. P. W. 2 is a resident of Ostapur village which adjoins Rama-krishnapur, the village of accused Nrusingha. He informed P. W. 1 about the dead body of the deceased lying in Maijora river. P. W. 5 gave the written report (Ext. 6) informing the police about the dead body of an unidentified girl lying on the bank of river Maijora. P. Ws. 10 and gold ear-ring (M.O. II) of the deceased. The evidence of P. Ws. 11, 12 and 28 was relied on to show that accused Nrusingha sold the other gold earring of the deceased to P. W. 11. P. Ws. 7, 13, 14 and 17 are the witnesses regarding the discovery of the deceased's Chadar (M.O. XIV) at the instance of accused Nrusingha from the river Maijora. P. W. 15 is the newspaper vendor and P. W. 20 is a rickshaw puller and both of them claim to have seen the deceased and accused Nrusingha at Kotikota Bazar. P. W. 19 is a resident of Kendrapara town and he claims to have gone with accused Nrusingha up to Nischintakoili on his (P. W. 19(s) bicycle). P. W. 30 is the doctor who conducted the post-mortem examination of the dead body of the deceased. P. W. 25 is the doctor who examined the accused persons. P. W. 18 is the witness to the seizure of Mali earrings (M.O.I.). P.W. 23 is the Judicial Magistrate who conducted the T. I. Parade in respect of the gold ear-ring M.O. II and the Chadar M.P. XIV. P. W. 33 was examined to State that on the relevant Tuesday night he saw accused Kailash along with a boy and a girl at a place near Maijora river. But he turned hostile and did not State anything in support of the prosecution. P. W. 9 is another hostile witness who does not state anything in support of the prosecution. P. Ws. 3, 4, 6, 7, 8, 21 and 24 are the witnesses to certain seizures made by the Police in course of the investigation. P. W. 26 is the Constable who accompanied the dead body of the deceased for its post-mortem examination. P.W. 31 is the A.S.I, of Police who received Ext. 6 and treated it as U.D. F.I.R. P.W. 32 was the Second Officer at the Mahanga P.S. On 24-12-1981 and he drew up the formal F.I.R Ext. 22 of the case. P. W. 34 is the main Investigating Officer in the case.
5. Considering the nature of the above mentioned three Criminal Appeals, it is necessary to consider the evidence placed on record to find out if the prosecution could successfully establish the charges under Sections 302, 376 and 201, I.P.C. against accused Nrusingha. Accused Kailash was acquitted of the charges under Sections 302/34, 376/34 and 201/34, I.P.C. and no appeal was preferred by the State against such acquittal. He was convicted by the trial Court only under Section 411, I.P.C. Hence, so far as the other accused Kailash is concerned, it is necessary to analyse the evidence to find out if the prosecution could prove its case against him under Section 411, I.P.C.
6. P.W. 2 Basanta Sethi of village Ostapur is the first person who identified the dead body lying in Maijora river to be of deceased Swarnalata. He found the dead body of the deceased on 23-12-1981. P. W. 30, Dr. J. K. Das, conducted the post-mortem examination over the dead body of Swarnalata on 24-12-1981 at 3.40 p.m. On such post-mortem examination the doctor (P. W. 30) found the following external injuries on the body of deceased Swarnalata:
"(i) Ecchymosis with multiple minute abrasions over an area of 1 1/2 x 1 1/2" on the entire of the right cheek.
(ii) Pressure abrasion having the size of 2" x2" over the left cheek below and inwards to the lateral angle of left eye placed in an oblique direction from above downwards and inwards.
(iii) Ecchymosis with abrasion over an area of 1 1/2" x 1" aft the centre of the forehead.
(iv) Both upper and lower lips were contused.
(v) Laceration with clotted blood of 1 1/2" x 1 / 8" present inside the lower lip corresponding to the area of left lateral incisor and canine teeth.
(vi) Abrasion of size 1/4" x 1/4" over the back of head just behind the root of the right ear.
(vii) Pressure abrasion of 2" breadth encircling the anterior aspect of the neck extending from the linear border of the sternomastoid to the inner border of the opposite sternomastised muscle. The area was depressed Parchmatised and dark brown in colour --margins were contused."
On dissection the doctor found as follows:
"Brain was congested. Froth and blood were present in the lomen larynx and trachea. Mucus membrane acchymosed. Both lungs were congested. Right chamber was empty. Mouth, pharynx and oesophagus contained froth and blood with poteschial haemorrhage over mucus membrane. Stomach contained 200 cc of gruel like sustance. Both small and large instine contained gas and ficus. Liver, spleen and the kidney were congested."
The doctor opined that the injuries found on the body of Swarnalata were antemortem in nature and that the injuries noticed by his were sufficient in the ordinary course of nature to cause her death. The doctor further opined that the cause of death of deceased Swarnalata was due to asphyxia resulting from pressure on the neck. Apart from the medical evidence, the circumstances in which the dead body of the deceased Swarnalata was found lying on the bank of Maijora river in Nahanga Gohira on the morning of 23-12-1981 with all her personal belongings lying scattered at a short distance from the dead body, would also suggest that her death was homicidal. Hence on a careful consideration of the evidence placed on record I see no reason to differ with the finding of the trial Court that the death of Swarnalata was homicidal in nature. The accused persons also do not dispute that the death of Swarnalata was homicidal in nature, but they plead that they are in no way responsible for her death.
7. There is no eye-witness to the occurrence which resulted in the death of deceased Swarnalata. So the prosecution case rests entirely on circumstantial evidence. On a perusal of paragraph 7 of the trial Court's judgment it is seen that the prosecution has relied on the following circumstances to prove the charge under Section 302, I.P.C. against accused Nrusingha:
(1) The accused had such intimate relationship with the deceased that he was in a position to induce her to go along with him and so he had the opportunity to kill her.
(2) The accused came to the house of the deceased at Dixitpada on 20-12-81.
(3) The accused made the suggestion that the deceased should go to Sisua for getting the treatment for the dog bite.
(4) The accused gave out that he was not in a position to accompany the deceased to Sisua as he was to go to Keonjhar.
(5) It was at the suggestion of the accused that P. W. 22 gave her gold earrings to the deceased and the deceased left the village wearing the same.
(6) The accused was last seen with the deceased at Katikata Bazar.
(7) The Chadar of the deceased (M.O. XIV) was recovered from the river Maijora due to the information furnished by the accused.
(8) The accused leading to the discovery of the finger ring (M.O. XV) from P. W. 11 and the admission of P. W. 11 that the accused had sold him a gold earring on 23-12-81 and he had converted the same into the finger ring.
(9) On the basis of the information given by the co-accused Kailash the earring M.O. II was recovered from P. W. 10.
(10) Out of the circumstances enumerated in the preceding paragraph, circumstances Nos. 5, 8 and 9 are gravely incriminating in nature and so at the outset the evidence relating to the same merits consideration.
According to the prosecution the deceased was wearing gold earrings at the time of occurrence and it is the greed for possessing those gold earrings which prompted the accused to commit the murder of the deceased. The prosecution claims that the gold earrings worn by the deceased at the time of her death could be traced in consequence of the information given by the accused persons and this is considered to be a strong incriminating circumstance against accused Nrusingha. So the evidence relating to the wearing of the gold earrings by the deceased at the time of occurrence merits careful consideration.
It is necessary to consider the evidence of P. Ws. 1, 2, 16 and 29 to find out if the deceased was wearing gold earrings at the time of occurrence as claimed by the prosecution. The evidence of P. W. 29, the mother of the deceased, shows that on the morning of 21-12-81 the deceased left for Sisua and half an hour thereafter accused Nrusingha left her house. From the evidence of P. Ws. 1 and 22 it is seen that before leaving her village Dixitpada, from her house the deceased went to their house. It is in the evidence of P. W. 22 that some time after the deceased came to her house, accused Nrusingha also came there. P. W. 22 stated that the deceased came to her house wearing the Mali earrings (M.O.I.), but as accused Nrusingha suggested that the deceased should wear a pair of gold earrings, as otherwise she would be looking like a "Kaluni" with the Mali earrings, she gave her gold earrings to the deceased and received from her the Mali earrings (M.O.I.). P. W. 1 is the husband of P. W. 22 and he was not present by the time accused Nrusingha came to his house. The evidence of P. W. 1 shows that on 21-12-1981 after he returned home from his field, as he noticed that his wife was not wearing the gold earrings, he asked her about it when she told him that the deceased had taken away her gold earrings and left for Sisua. So the positive case of the prosecution, elicited through P.Ws. 1 and 22 is that by the time the deceased left her house and came to the house of P. W. 22 she was wearing only Mali earrings and it was only at the house of P. W. 22 she had exchanged her Mali earrings for the gold earrings of P. W. 22 and that this exchange was done at the suggestion of accused Nrusingha who made the suggestion with a malicious aforethought.
P. W. 16 Premalata is the sister of the deceased and the deceased was three years younger to her. As P. W. 16 was unmarried, she was residing with her two younger sisters, one of whom was the deceased, in the same house. P. W. 16 deposed in her chief examination that he deceased Swarnalata had a pair of gold earrings like the ones she had put on while deposing in the Court. She stated in her cross-examination that Swarnalata used to put on earrings made of Mali and occasionally she was putting on gold earrings. From the above evidence of P. W. 16 it is clear that deceased Swarnalata did have a pair of gold ear-rings of her own. P. W. 16 stated that she had not seen Swarnalata when she left their house on 21-12-81, and so she is not in a position to say as to what type of ear-rings the deceased was wearing at the time she left her house.
It is in the prosecution evidence that accused Nrusingha was on very intimate terms with the deceased and that he was in her house on the relevant morning. So he must be knowing about the deceased owning a pair of gold ear-rings and if he had a preplan to kill the deceased and take away her gold earrings, he would have made the suggestion to the deceased to wear her own gold ear-rings at her house itself instead of making the suggestion to P. W. 22, as there was no certainty that she would be prepared to exchange her gold ear-rings for the Mali ear-rings. P. Ws. 29 categorical statement before the 1.0. is that while going from her house the .deceased had worn two gold ear-rings weighing four annas of two annas each. The statement of P. W. 29 before the I.O. (P. W. 34) that while leaving her house on Monday morning for Sisua Swarnalata had put on a pair of gold ear-rings contradicts her version in the Court that the deceased had left the house wearing a pair of Mali ear-rings and the same is a material contradiction, which creates a serious doubt about the truth of the version of P. W. 22 that she gave her gold ear-rings to the deceased.
It is in the evidence of P. W. 22 that besides the gold ear-rings she had no other gold ornaments. It is in the evidence of P. W. 1 that on 23-12-81 at about 11 a.m. on coming to know that the dead body of Swarnalata was lying in the Nahanga Gohira Maijora river he rushed there. According to P. W. 1 by the evening of 21-12-81 he learnt from his wife that the deceased had left his house wearning his wife's gold ear-rings and that he was particular about them is evident from the fact that he questioned his wife about the ear-rings when she did not wear them. So if really the deceased wore the gold ear-rings of P. W. 22 at the time of her death, when P. W. 1 rushed to see the dead body of the deceased, the conspicious missing of the gold ear-rings from the person of the deceased must have drawn his attention and he would have complained about it to everyone including the police. But strangely enough, from the deposition of P. W. 1 it is seen that there is nothing in his evidence to suggest that he had noticed about the missing of ear-rings when he saw the dead body of the deceased on the morning of 23-12-81 or when he was present at the time of inquest held on 24-12-81.
If it is the exchange of the ear-rings between his wife and the deceased which resulted in the loss of the gold ear-rings, P. W. 1 would not have omitted to state about it before the I.O. From the evidence of the I.O. it is seen that Prafulla (P. W. 1) did not state before him anything about the gold ear-rings and this is a material contradiction which raises a reasonable doubt whether at all there was an exchange of ear-rings between P. W. 22 and the deceased as alleged by the prosecution. That apart, if there were to be an exchange of ear-rings as alleged by P. W. 22, then the Mali ear-rings (M.O.I.) made of blus beads of the deceased must be with P. W. 22 and the I.O. must have seized the same from her. P. W. 18 is an independent witness relating to the seizure of M.O.I. He deposed that he was present at the time of the siezure of the Mali ear-rings (M.O.I.) and that the same were seized on production by the mother of P. W. 16. So the very fact that the pair of ear-rings (M.O.I.) were seized from the mother of P. W. 22 is another circumstance which goes against the version of P. W. 22 that the deceased gave her the Mali ear-rings (M.O.I.) in exchange for her gold ear-rings.
According to the prosecution M.O. II is one of the pair of ear-rings of P. W. 22 which she allegedly gave to the deceased on the relevant morning. P. W. 22 stated before the Court that the 'Hada" of the ear-ring M.O. II can be bent from side to side. But from her deposition it is seen that the Court after examining M.O. II had observed that presently the "Hada" is not bending and it is fixed though it has a system of bending. The import of this observation by the Court cannot be ignored altogether.
P. W. 22 is the only witness who had the direct knowledge about the deceased leaving her house wearing her gold ear-rings and P. W. 1 subsequently came to know about it from P. W. 22. The dead body of the deceased was found on the river bank on the morning of 23-12-81 and P. W. 1 had seen the dead body. So by 23-12-81 P.Ws. 1 and 22 must have known about the removal of the gold ear-rings from the person of the deceased. The commission of the theft of gold ear-rings is suggested by the prosecution to be the motive for the crime. So in this background P. W. 22 is the most material witness and if there is any truth in the evidence of P. Ws. 1 and 22 regarding the deceased wearing the gold earrings, P. W. 1 must have disclosed about this fact to the I.O. as he was present with the I.O. On 23-12-81 when he came to the spot as well as on 24-12-81 when the I.O. held the inquest. At any rate when the I.O. alleges that he could trace out one of the ear-rings of the deceased on 25-12-81 in consequence of the information given by the accused, his further enquiry regarding the gold ear-rings must have enabled him to realise the importance of the evidence of P. W. 22. The prosecution claims that the other ear-ring of the deceased (M.O. II) was recovered on 27-12-81 from P. W. 10 at the instance of accused Kailash. But strangely enough the I.O. had examined P. W. 22 only on 30-12-81. There is no acceptable explanation from the side of the prosecution for this belated examination of P. W. 22, the most material witness in the case, and this inordinate delay in the examination of P. W. 22 lends support to the defence contention that the prosecution tried to fabricate the case against accused Nrusingha through P. W. 22.
In view of the nature of the evidence on the aspect it is difficult to believe the version of P. W. 22 that she gave the gold ear-rings to the deceased in exchange for her Mali ear-rings. It is the positive case of the prosecution that the deceased left her house waring the Mali ear-rings and it was only at the house of P. W. 22 she borrowed the gold ear-rings from her sister (P. W. 22) and wearing them left Dixitpada. So once the story of the exchange of ear-rings between the deceased and P. W. 22 is disbelieved, the only reasonable conclusion is that there is no satisfactory evidence from the side of the prosecution to prove that the deceased was wearing gold ear-rings when she left Dixitpada.
9. This is the proper stage for considering the prosecution evidence regarding the alleged recovery of M.Os. II and XV on the basis of the information furnished by the accused persons.
The evidence of P.W. 11, A. B. Prasad, shows that on 23-12-81 accused Nrusingha came to his shop at Balubazar with a piece of gold ear-ring and offered to sell it to him. He deposed that after weighing the gold ear-ring, he had paid Rs. 205/- to accused Nrusingha and received the gold ear-ring from him. P.W. 11 stated that he converted the said ear-ring to a finger ring on 24-12-81 and that on 25-12-81 as he needed money he pledged the ring with one Rajballava Sahoo (P. W. 12) and brought Rs. 150/- from him. It is in his evidence that on 25-12-81 at about 8 p.m. accused Nrusingha along with some Police staff came to his shop and then as the A. S. P. asked him about the gold ear-ring, he then brought the finger ring from Rajballav and produced it before the A.S.P. when it was seized as per the seizure list Ext. 11. He admits in the cross-examination that he did not know accused Nrusingha before 23-12-81. P. W. 11 claims to have converted the ear-ring to a finger ring on the very next day, i.e. on 24-12-81. It is not known why the gold ear-ring was converted to a finger ring by P.W. 11 on the very next day of its purchase by him in such haste. His evidence shows that as he needed money on 25-12-81 he pledged the ring with P. W. 12, another goldsmith and borrowed Rs. 150/-. If on 23-12-81 P. W. 11 had money enough to purchase the gold ear-ring for Rs. 205/- it is difficult to believe that by 25-12-81 he was in such urgent need of money that he had to pledge the finger ring with P. W. 12. Admittedly P. W. 11 has not noted the date of purchase of the ear-ring anywhere. So it is difficult to accept his version when he deposed on 5-1-83 that he was in a position to remember the specific date and more so in view of his evidence when he stated in the first instance that accused Nrusingha came to his shop On 23-11-81 and soon after corrects himself by saying that it was on 23-12-81 the accused came to his shop. P. W. 11 deposes that though according to him the proper price of the ear-ring was Rs. 200/- he paid Rs. 205/-to the accused and he admits that there is no reason as to why he paid Rs. 5/- more to the accused. His statement in the cross-examination that he did not pledge the gold ring with Rajballav and it was just a friendly transaction between them contradicts his version in the chief-examination that he pledged it with the said Rajballav. P. W. 12 was examined to corroborate the version of P. W. 11. The evidence of P. W. 12 shows that P. W. 11 kept gold ring with him and obtained from him Rs. 150/- and told him that he would return the money and take back his gold ring. So the evidence of P. W. 12 shows that P. W. 11 had in fact pledged the gold ring with P. W. 12. P. W. 12 states that he cannot presently identify the ring as the ring remained with him only for about one hour or two. P. W. 12 does not state about the date or time when the gold ring was pledged with him. P. W. 12 has his shop at Balubazar in front of the shop of P. W. 11. If the version of P. W. 11 that he brought the ring from P. W. 12 and produced it before the I.O. for its seizure is true, then at least when the Police had seized the ear-ring from P. W. 11, P. W. 12 must have ascertained from P. W. 11 as to why it was seized by the Police and then he would have known as to how P. W. 11 came to possess it. On a perusal of the evidence of P. W. 12 it is seen that he does not state anything about accused Nrusingha and thus he is silent on a vital aspect of the prosecution case. When the shop of P. W. 12 was opposite to the shop of P. W. 11, the I.O. ought to have seized the gold ring from P. W. 12 himself. The statement of P. W. 12 that he does not keep gold ornaments on pledge goes a long way to falsify the version of P.Ws. 11 and 12 that the gold ring was pledged with P. W. 12 by P. W. 11. P. W. 12 stated that when he kept the gold ring from P. W. 11, he kept a small chit and if there is any truth in the said statement, the I.O. ought to have seized the said chit also, as the seizure of the ring had taken place within an hour or two from the time of the pledge. P. W. 11 stated that he cannot say the names of witnesses who were present at the time of seizure of the ring from him. P. W. 11 stated that he did not know accused Nrusingha from before 23-12-81. So according to P. W. 11 accused Nrusingha was a stranger to him when he purchased the gold ear-ring from him on 23-12-81. P. W. 11 further stated that he did not ascertain from accused Nrusingha any information about him such as his village, his father's name etc. It is normally not expected of an honest goldsmith to purchase from an utter stranger any gold ornament and more so a single ear-ring from out of a pair of earrings. So on his own showing the conduct of P. W. 11 in purchasing the gold ear-ring is itself suspicious and so the possibility of his perjuring himself in support of the prosecution to save his own skin cannot be ruled out and this is another circumstance to discredit his testimony regarding the purchase of the gold ear-ring from accused Nrusingha.
10. Accused Kailash was acquitted of the charges under Sections 302, 376 and 201 read with Section 34, I.P.C. and the State has not preferred any appeal against the order of acquittal. There is absolutely no evidence as to how at all accused Kailash came to possess the gold ear-ring M.O. II.
Regarding the recovery of M.O. II, the I.O. P. W. 34 deposed that on 27-12-81 accused Kailash stated before him that he had sold one gold ear-ring to one Prahallad Sahu (P. W. 10) of village Paikala and after stating so he led him (P. W. 34) to the shop of Parhallad Sahu when the latter admitted before him (P. W. 34) that accused Kailash had sold him the gold ear-ring and brought out and produced the same before him. From the evidence of the I.O. it is seen that accused Kailash as well as P. W. 10 stated before him that the accused had sold the gold ear-ring to P. W. 10. But the evidence of P. W. 10 reads that as the accused expressed his urgent need of money and kept the gold ear-ring with him, he (P. W. 10) paid the accused Rs. 40/- when he left. P. W. 10 has not stated in chief-examination that the gold ear-ring was actually sold to him. So the evidence of P. W. 10 that the gold ear-ring was kept with him contradicts the version of the I.O. that the gold ear-ring was gold to P. W. 10 and the same is a material contradiction. The nature of the evidence of P. W. 10 is such that it would not be safe to place reliance on his evidence that he received M.O. II from accused Kailash and more so as the same is a self-serving statement.
When the culprit had killed the deceased, admittedly no one had seen it. Accused Kailash's father is the first cousin of deceaseds father. If the motive for the crime is the greed for the gold ear-rings, it is not expected that the culprit would be giving one of the earrings to accused Kailash, who was related to the deceased, and thereby give him the clue that he was involved in the commission of the murder of the deceased. So the probabilities in the case also go against the truth of the prosecution story that accused Kailash came to possess the deceased's gold ear-ring M.O. II So there is no satisfactory evidence in support of the charge under Section 411, I.P.C. against accused Kailash.
11. As it is found that there is no reliable evidence to show that the deceased was wearing gold ear-ring at the time of her death, on that score alone the prosecution evidence regarding the alleged recovery of M.O. II on the information furnished by accused Kailash and the seizure of the finger ring (M.O. XV) from the shop of P. W. 11 on the basis of the information given by accused Nrusingha merits no consideration. Even otherwise also the prosecution evidence regarding the recovery of M.Os. II and XV on the basis of information furnished by the accused persons suffers from serious infirmities as pointed out above and the same cannot be safely relied on.
12. Prosecution adduced evidence to show that the deceased's Chadar (M.O. XIV) was recovered from river Maijore on the basis of the information given by the accused. There is absolutely no evidence as to in what manner the said Chadar is connected with the crime. Regarding the recovery of the Chadar M.O. XIV the prosecution has examined P. Ws. 7, 13, 14 and 17. It is in the evidence of P. W. 29 that when she left the house the deceased carried a plastic bag wherein she kept various articles besides the Chadar.
P. W. 22 stated that the deceased had the Chadar M.O. XIV in her plastic basket when she left the house. It is in the evidence of the I.O. that accused Nrusingha, while in custody, in the presence 'of P.Ws. 13 and 17 stated, while standing on the bank of the river, that he had thrown the Chadar of the deceased in the water of Maijora river and he had pointed out the place where he had thrown it. The accused denies having made any such statement before the I.O. leading to the discovery of the Chadar. It is in the evidence of P.W. 17 that he along with 8 to 10 other boys got into the water in search of the Chadar as directed by the I.O. P.W. 13 deposed that within half an hour they got the Chadar from inside the river. It is in the evidence of P.W. 17 that the Chadar was found at a place at a distance of about 20 to 25 cubits from the place where the dead body of the deceased was lying. There is reliable evidence to show that the various articles belonging to the deceased were scattered at some distance from the body of the deceased. It is in the evidence of P. W. 1 that they found the dead body of the deceased lying close to the bank of Maijora river with a portion of the body inside the water and the other portion on the ground. Considering the circumstances in which the dead body of the deceased was found anybody would have normally expected the Chadar to be in the river at some distance from the body as the same was not found outside along with other things lying scattered. The very fact that it took about half an hour for about 8 to 10 persons to find out the Chadar reveals that the alleged information given by the accused did not specifically indicate the exact place where the Chadar was to be found. There is nothing in the prosecution evidence to suggest as to what might have been the motive which prompted the culprit to throw the Chadar in the river when all the other articles of the deceased were allowed to lie outside. So the prosecution evidence regarding the recovery of the Chadar on the basis of the information said to have been given by accused Nrusingha does not inspire the confidence of the Court.
13. Prosecution has examined P. Ws. 15 and 20 to show that on the morning of 21-12-81 at about 10.30 p.m the deceased and accused Nrusingha boarded a bus which went towards Kendrapara side. The evidence of P. W. 15 shows that on the relevant morning at Katikata Bazar he saw a girl sitting on a bench in front of a Pan shop and noticing that she was waiting for some one, he asked her as to why she was waiting there and for whom she was waiting there, when she replied to him that she was waiting for her brother and then he asked her whether he was her own brother when she replied that he was her father's sister's son. P. W. 15 further deposes that on being further questioned by him, she gave her brother's name as Nrusingha Barik and when he (P. W. 15) questioned the girl about her identity, she told him that she was Swarnalata, daughter of Golakh Barik of Dixitpada. P. W. 15 stated that as he felt suspicious about her, he sent a rickshaw puller to go to her and ascertain as to why she was sitting there. It is in the prosecution evidence that the deceased was in the habit of going alone to different places and at times she used to go to Cuttack all alone. P. W. 1 stated that the deceased was working in the Spinning Hall at village Malipur and used to earn Rs. 50 to Rs. 60/- per month. P. W. 15 claims to have seen the deceased at Katikata Bazar earlier on many occasions. He states that he knew that the deceased was working in the Suta Kata Kendra (Spinning Centre) at Asureswar. In view of this background it is difficult to bilieve that when the deceased sat on a bench near a Pan shop waiting for somebody, she conducted himself in such a way so as to arouse the suspicion of others and particularly of P. W. 15. The deceased was a girl aged about 17 years. She had no prior acquaintance with P. W. 15. The evidence of P. W. 15 discloses that the place where the deceased was sitting was quite close to the bus stand at Katikata. Under the circumstances, even if P. W. 15 had taken the liberty of questioning the deceased as to for whom she was waiting, it is difficult to believe that even after she replied that she was waiting for her brother, he would have taken the further liberty of putting further questions to her eliciting particulars about her and her brother. The replies allegedly given by the deceased in this context that the name of her brother is "Nrusingha Barik of Ostapur" and that she was "Swarnalata of Dixitpada" have a touch of artificiality about them. At any rate if the evidence of P. W. 15 in this regard is true, in view of the nature of the replies allegedly given by the deceased to P. W. 15, there was no room left for any suspicion. So it is difficult to believe P. W. 15 when he stated that even after the deceased gave replies to his queries in the above manner, he still sent & rickshaw puller to go and ascertain from the deceased as to why she was sitting there. That P. W. 15 is not a truthful witness is evident from his admission in cross-examination that he did not ascertain from Swarnalata as to which village she belonged and who is her father, contradicting his earlier version to the contrary in chief-examination. The evidence of P. W. 15 shows that as soon as accused Nrusingha arrived, accused and deceased went to the bus-stand and boarded a mini bus and thus P. W. 15 had no chance to observe the accused closely. P. W. 15 admits that he had never seen accused Nrusingha at any time prior to 21-12-81. So in case the prosecution wanted to reply on the evidence of P. W. 15 regarding the identify of the person who had allegedly boarded the bus with the deceased, in the facts of the present case, the prosecution to have conducted a test identification parade for the purpose of identification of accused Nrusingha by P. W. 15. P. W. 20 is the rickshaw puller examined to corroborate the version of P. W. 15 that accused Nrusingha left with the deceased in a mini bus proceeding towards Kendrapara. If there is any truth in the prosecution version that P. W. 20 also shared the curiosity of P. W. 15 and ascertained from the deceased as to who was she and for whom she was waiting, then he would have been equally curious to find out as to who had actually accompanied the girl (the deceased) in the mini bus and if really some body had accompanied her, he could not have missed to notice it. But P. W. 20 deposes that he saw a girl boarding the minibus proceeding towards Kendrapara, but he did not see the brother of the girl and he cannot say if any body accompanied the girl in the bus. Thus P. W. 20 does not corroborate P. W. 15 on the vital aspect of the prosecution case that accused Nrusingha had accompanied the deceased in the mini-bus proceeding towards Kendrapara. Hence the prosecution declared P. W. 20 hostile. Considering the nature of the evidence of P. W. 15 it would be unsafe to rely on his uncorroborated testimony to come to a finding that accused Nrusingha had accompanied the deceased in the mini-bus proceeding towards Kendrapara.
14. There are some peculiar features in the prosecution case which defy any rational explanation. In the trial Court both the accused persons were charged under Sections 376/34, I.P.C. as well, but they were acquitted of the said charge. State of Orissa has preferred Government Appeal No. 26 of 1983 on the ground that accused Nrusingha Barik ought to have been convicted of the offence under Section 376, I.P.C. as well. So it is the prosecution case that accused Nrusingha after having had forcible sexual intercourse with the deceased had killed her. The only evidence on which the prosecution relied on for proving the charge of rape is the evidence of the doctor P. W. 30. In view of the gaping of labia majora of the deceased, the doctor is of the opinion that it is the result of habitual masturbation or sexual intercourse. The doctor opined that from the injuries noticed by him, "the possibility of forcible sexual intercourse with the deceased with violence cannot be excluded". So even the doctor is not categorical in his opinion that the deceased was raped before being killed by the culprit. So the trial Court was justified in acquitting accused Nrusingh also of the charge under Section 376, I.P.C. and thus the Government appeal has no merit. However, the fact remains that the prosecution theory is that rape on the deceased preceded her death and so it necessarily follows that whoever killed the deceased had committed rape on her.
It is in the evidence of the mother of the deceased that the deceased and accused Nrusingha used to go together to visit different Melas and Jatras and that their relationship was quite intimate and that accused Nrusingh used to visit her house and quite frequently. P. W. 1 stated that accused Nrusingh is the deceased's father's sister's son. He also stated that accused Nrusingh used to visit his house and the house of the deceased frequently and he had good relationship with all of them. On a consideration of the evidence the trial Court in paragraph 15 of its judgment found thus:
".....The relationship between accused Nrusingha and the deceased, the conduct of the deceased while she was living, in visiting 'meals' and 'jatras' with the accused and going to different places with a 'Pala' troupe, indicate that there was something more than a simple brother and sister relationship between the accused and the deceased....."
Considering the nature of the evidence the trial Court was justified in arriving at such a finding. In view of the intimate relationship the deceased was having with accused Nrusingha the probabilities are that she would have been a willing partner with him for having sexual relationship and it is highly improbable that he would have had forcible sexual intercourse with her against her will and without her consent. So the prosecution theory that the culprit had committed rape on the deceased and killed her does not fit in with the case that it was accused Nrusingh who murdered the deceased after committing rape on her.
15. The prosecution has suggested that the alleged removal of the gold ear-rings from the person of the deceased is an additional motive for the commission of the crime. It is earlier found that there is no reliable evidence to show that the deceased was wearing gold ear-rings at the time of her death. Even otherwise also the gold ear-rings cannot be a temptation to accused Nrusingh for committing the crime in view of the intimate relationship between him and the deceased. The pair of gold ear-rings was wroth about Rs. 500/-. It is in the evidence that the deceased was working in a spinning hall and earning Rs. 50/- to Rs. 60/- per month. It is in the evidence of P. W. 16 that deceased Swarnalata used to act as the principal Palis in the Pala party and that way also she might be adding something to her income. In view of the intimate relationship between the deceased and accused Nrusingha, she would have volunteered to help him financially. So it is highly improbable that accused Nrusingh would have killed the deceased for her gold ear-rings.
Co-accused Kailash was acquitted of the charges under Sections 302, 376 and 201 read with Section 34, I.P.C. and the State has not preferred an appeal. So accused Kailash had no hand in the commission of the crime according to the trial Court and this finding is not challenged by the prosecution in this Court. Under the circumstances, if accused Nrusingha had committed the murder of the deceased out of greed for the gold ear-rings, it is difficult to understand as to why at all he gave one of the ear-rings to accused Kailash and that too exposing himself to the risk of being known as the murderer of the deceased. So the prosecution story that accused Nrusingha committed the murder of the deceased for the gold earrings sounds inherently improbable.
16. It is the above circumstances which prompted the trial Court to observe thus in paragraph 15 of its judgment:
"Before closing up, I would like to mention that it is a case in which the motive for perpetration of the crime is shrouded in mystery. No clear story is before us to indicate as to what for Swarnalata was murdered....."
Hence it is seen that the prosecution has failed to prove that accused Nrusingha had any motive for committing the murder of the deceased. The absence of a motive is also a circumstance which is relevent for assessing the evidence. Where there is clear proof of motive for the crime that leads additional support to the finding of the Court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very closely examined (See Atley v. State of U. P., AIR 1955 SC 807 : (1955 Cri LJ 1653). In the facts of the present case, the absence of motive is an additional circumstances in favour of the accused.
17. So far as the evidence regarding the other circumstances Nos. 1 to 4 enumerated in para 7 above is concerned, it is in the evidence of P.Ws. 1, 16 and 29 that accused Nrusingha used to frequently visit the house of the deceased and therefore if the accused had gone to the house of the deceased on 20-12-1981, it cannot be considered to be an incriminating circumstance against him. The evidence of P. W. 29 shows that in the course of her talk with Nrusingha on the relevant Sunday night she told him about Swarnalata's complaint regarding the 'dog-bite wound when he told her that there was a doctor at village Sisua who was treating such cases. There is evidence to show that a dog had bitten the deceased about one year prior to the date of death and she was treated for the same at Kendrapara and at Cuttack. P. Ws. 1 and 29 wanted the Court to believe that though the wound healed up, yet some time after there was ulceration at the site of the wound. In view of the admission of P. W. 29 in her chief-examination that on the relevant day the deceased had no wound on the leg, it is difficult to believe her when she stated that she told accused Nrusingha about the deceased's complaint regarding the dog-bite wound. In any event, even if the said evidence is believe to be true, from the evidence of P. W. 29, the mother of the deceased, it is seen that during the course of her conversation with accused Nrusingha, it was she, of her own accord, who first raised the topic regarding the deceased's complaint about the dog-bite and so if in that context the accused had stated that there is a doctor in village Sisua, who was treating such cases, it cannot be considered as an incriminating circumstance against him. Likewise, the evidence of P. W. 29 that the accused told her that he was not in a position to accompany the deceased to Sisua as he had to go to Keonjhar, cannot be taken to be an incriminating circumstance against the accused. There is evidence to show that the deceased was on intimate terms with accused Nrusingha and that both of them were freely going to different places. From the mere fact that accused Nrusingha was in a position to induce the deceased to go along with him, it is not proper to consider it is an incriminating circumstance against him on the ground that he had the opportunity to kill her. It is a truism that there can be no crime without the opportunity to commit it and whoever had killed the deceased had the opportunity to do so. It is in the evidence of P. W. 1 that deceased Swarnalata was in the habit of going alone at times. It is in the evidence of P. W. 16, the sister of the deceased also, that the deceased used to go out of the village on different occasions all alone. P. W. 16 further stated that deceased Swarnalata used to remain absent from home while visiting different places with the Pala party. In the present case also, though she left the village on the morning of 21-12-81, from the evidence it appears that no one bothered about her absence from the village on 22-12-81. P. W. 1 stated that his house was "at a calls distance" from the house of the deceased, but strangely enough, though P. W. 1 was residing at a close distance from the house of the deceased he admits that he made no enquiry about the deceased from 21-12-81 to 23-12-81. The above circumstances reveal that the deceased had her own way of doing things regardless of others and was conducting herself in such a manner that there may be several others besides accused Nrusingha, who might have had the like opportunity to commit the crime. That there is a wide gulf between opportunity to commit a crime and the actual commission of the crime must always be kept in mind. In the facts of the present case, the fact that accused Nrusingha had the opportunity to commit the crime is a very week link in the chain of circumstantial evidence.
Where there is no eye-witness to the murder and the case against the accused depends entirely on circumstantial evidence, as in the present case, the standard of proof required to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these circumstances should be so far complete as pot to leave any reasonable ground for a conclusion consistent with the innocence of the accused. (See Deonandan Mishra v. State of Bihar, AIR 1955 SC 801 : (1955 Cri LJ 1647) and Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890 : (1989 Cri LJ 2124)). In the present case, the circumstances relied on by the prosecution against accused Nrusingha have not been fully established. Hence we find that this is a case which does not satisfy the standards requisite for conviction of accused Nrusingha under Section 302, I.P.C. on the basis of circumstantial evidence and therefore, he is entitled to an acquittal under Section 302, I.P.C.
The charge against the accused under Section 201, I.P.C. must also fail as there is no acceptable evidence to substantiate such charge. The prosecution has equally failed to prove its case against accused Kailash Barik under Section 411, I.P.C. and he is, therefore, entitled to an acquittal thereunder.
19. In the result, appellant Nrusingha is found not guilty of the offence under Section 302, I.P.C. and the order of conviction and sentence passed against him thereunder by the trial Court is hereby set aside. Further he is not found guilty of the offence under Section 201, I.P.C. as well and so the order of conviction passed against him thereunder is hereby set aside. Accused Kailash Barik is also not found guilty of the offense under Section 411, I.P.C. and therefore the order of conviction and sentence passed against him thereunder is hereby set aside. Accordingly, Jail Criminal Appeal No. 92 of 1983 and Criminal Appeal No. 35 of 1983 are allowed and Government Appeal No. 26 of 1983 is hereby dismissed.
S.C. Mohapatra, J.
20. I agree.