Orissa High Court
Gedu Alias Parameswar Patra vs State Of Orissa on 13 July, 2016
Author: S.K. Sahoo
Bench: I. Mahanty, S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 13 Of 2004
From the judgment and order dated 10.12.2003 passed by the
Sessions Judge, Sundargarh in Sessions Trial Case No.215 of
1999.
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Gedu @ Parameswar Patra ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant - Miss. Bijaya Laxmi Tripathy
Miss. Nandini Tripathy
Miss. Binapani Tripathy
For Respondent - Mr. Arun Kumar Mohanty
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE I. MAHANTY
AND
THE HONOURABLE MR. JUSTICE S.K.SAHOO
...................................................................................................
Date of Hearing - 01.06.2016 Date of Judgment- 13.07.2016
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S. K. SAHOO, J.The appellant Gedu @ Parameswar Patra was charged under section 302 of the Indian Penal Code by the learned Sessions Judge, Sundargarh in S.T. Case No. 215 of 1999 for committing murder of Smt. Saradha Singh (hereafter 'the 2 deceased') on 27.11.1998 in village Birtola under Banki Police Station in the district of Sundargarh.
The learned Trial Court found the appellant guilty under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo further rigorous imprisonment for one year.
2. The prosecution case, as per the First information report (Ext.3) presented by Lalbahadur Singh (P.W.1), the husband of the deceased on 28.11.1998 before the officer in charge, Banki Police Station is that he was running a tea stall at Birotola village Square where he was also residing with the deceased. On 27.11.1998 at about 8 p.m. the informant and the deceased took their supper and the deceased went to sleep inside the thatched house -cum- tea stall. The informant and co- villager Suguna Munda (P.W.3) were warming themselves in front of the tea stall by sitting by the side of the fire. At about 10 p.m. the appellant arrived there and sat with them. Sometimes thereafter, the informant and P.W.3 left the spot to join their duties as watchmen. At that time the appellant was sitting near the house of the informant. On the next day morning at about 6 a.m. when the informant returned from his duty, he found that the deceased was not present in the house and the bed was lying 3 as such. At that point of time, Bhagirathi Nayak (P.W.4) who was a neighbour of the informant came there and informed him that the dead body of a woman was lying in the front courtyard of his house. The informant went there and found the deceased lying dead with bleeding injuries on different parts of her body. He also found dragging mark from his house to the place of occurrence and the saree of the deceased was lying at a separate place. The informant suspected that after his departure in the night, the appellant might have committed murder of the deceased and dragged her from the house and threw the dead body in the front courtyard of the house of P.W.4 and absconding. It is also indicated in the First Information Report that the appellant was involved in a murder case and was acquitted just a month back.
On the basis of the First Information Report, Purna Chandra Moharana (P.W.11), who was attached to Banki Police Station as officer-in-charge registered Banki P.S. Case No. 29 dated 28.11.1998 under section 302 of the Indian Penal Code against the appellant and himself took up investigation of the case.
3. During course of investigation, P.W.11 visited the spot and prepared spot map Ext.8. He also conducted inquest over the dead body and prepared inquest report Ext.2. He seized 4 three pieces of broken glass bangles, one kantha (bed cushion) and one mat from the spot and prepared seizure list Ext.1. He examined the witnesses and sent the dead body to C.H.C., Lahunipada for post-mortem examination. P.W.6 Dr. Jagdish Dehury who was attached to the said hospital as Medical Officer conducted post-mortem examination and opined the cause of death was asphyxia due to strangulation.
The Investigating Officer (P.W.11) seized the station diary of Chandiposh outpost and prepared seizure list Ext.9 and left the same in the zima of the A.S.I. of Police of Chandiposh outpost vide zimanama Ext.10. He seized the wearing apparels of the deceased being produced by the constable after the post mortem examination under seizure list Ext.5. He received the post mortem examination report. On 14.06.1999 P.W.11 submitted charge sheet under section 302 of the Indian Penal Code showing the appellant as absconder. Subsequently on 06.10.1999 the appellant was produced in Court after being arrested on 05.10.1999 and remanded to jail custody.
4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of the Indian Penal Code on 5 28.03.2001 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
5. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses.
P.W.1 Lalbahadur Singh was the husband of the deceased and he is the informant in the case. He stated that on the date of occurrence during night when he and P.W.3 left for their duties, the appellant and the deceased were sitting by the side of the fire. He further stated to have noticed the dead body of the deceased lying in the court yard of P.W.4 in the morning and dragging mark from his house to the place where the deceased was lying.
P.W.2 Pagari Munda stated about what P.W.1 narrated before him regarding the happenings on the occurrence night. He is also a witness to the seizure of broken bangles from the spot under seizure list Ext.1. He is also a witness to the inquest and proved inquest report Ext.2.
P.W.3 Suguna Munda stated about the presence of the appellant at the spot on the occurrence night when he and P.W.1 left the spot for guarding the camp. He further stated that on the next day morning, he found the dead body of the 6 deceased lying in front of the house of P.W.4 and also sign of dragging from the house of the deceased to the spot where the dead body was lying.
P.W.4 Bhagirathi Naik stated about the dead body of the deceased lying in front court yard of his house. He is also a witness to the seizure of one mat, one kantha and some broken bangles by the police and also about the preparation of inquest report Ext.2.
P.W.5 Dhiren Patra is a witness to the inquest. P.W.6 Dr. Jagdish Dehuri was attached to C.H.C., Lahunipada as Medical Officer and conducted post mortem examination over the dead body and noticed number of injuries on the person of the deceased which were opined to be ante mortem in nature. He opined the cause of death was asphyxia due to strangulation caused by means of cloth. He proved the post mortem examination report Ext.4.
P.W.7 Guru Charan Patra was the constable attached to Banki Police Station who produced the saree, red colour blouse and white colour dhoti after post mortem examination which were seized under seizure list Ext.5.
P.W.8 Pascal Ekka was the constable attached to Chandiposh outpost under Banki Police Station who escorted the 7 dead body for post mortem examination to C.H.C., Lahunipada and after post mortem examination, the wearing apparels of the deceased were handed over to him by the doctor and he produced the same before the investigating officer which were seized under seizure list Ext.5.
P.W.9 Rajendra Kumar Patra did not support the prosecution case for which he declared hostile.
P.W.10 Gobardhan Mahanta stated to have seen the appellant boarding a bus on 28.11.1998 in the morning hours at Birtola Square.
P.W.11 Purna Chandra Moharana was the officer in charge of Banki Police Station who is the investigating officer in the case.
P.W.12 Sudarsan Dharei was the A.S.I. of Police attached to Banki Police Station who stated about the seizure of one saree, one blouse, one dhoti under seizure list Ext.5.
P.W.13 Gangadhar Sethi was the A.S.I. of Police attached to Chandiposh outpost who stated to have reduced the oral information given by P.W.1 to writing and making a station diary entry in the outpost and despatched the report to Banki Police Station for formal registration.
8
The prosecution exhibited twelve documents. Ext.1 is the seizure list, Ext.2 is the inquest report, Ext.3 is the First Information Report, Ext.4 is the post mortem examination report, Ext.5 is the seizure list, Ext.6 is the command certificate, Ext.7 is the dead body challan, Ext.8 is the spot map, Ext.9 is the seizure list, Ext.10 is the zimanama, Ext.11 is the order sheet dated 05.09.1998 and Ext.12 is the judgment passed in S.T. Case No. 182 of 1996.
The prosecution also proved one material object i.e. dhoti as M.O.I.
6. The defence plea of the appellant was one of denial and it was pleaded that he has been falsely entangled in the case.
7. The learned Trial Court has been pleased to hold that the prosecution has established beyond reasonable doubt that death of the deceased was homicidal in nature. The learned Trial Court further held that the contradiction appearing in the evidence of P.W.1 was minor in nature and that on material particulars P.W.3 had supported P.W.1. It was further held that the prosecution amply established the date and time of last seen of the appellant and the deceased together. It was further held that the occurrence took place in between 10 p.m. to 3 a.m. 9 which is corroborated by the findings of the doctor conducting post mortem examination. It was further held that the time gap between the death of the deceased and the time when the deceased was seen alive in the company of the appellant was so small and so proximate that the only inference that can be drawn was that the appellant was the author of the heinous crime. It was further held that from the statement of P.W.10, it is clear that on 28.11.1998 the appellant was found going away from Birtola in a bus which is consistent with the fact that in between 10.10 p.m. on 27.11.1998 and 6.45 a.m. of 28.11.1998, he was at Birtola. The learned Trial Court further held that the appellant absconded after 28.11.1998 and could be apprehended much later i.e. on 05.10.1999 from Rourkela and the fact of absconding connected with the other circumstances forms a complete chain and points towards the guilt of the appellant. The learned Trial Court relying upon some circumstances found the appellant guilty under section 302 of the Indian Penal Code.
8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.2, the prosecution has also relied upon the evidence of P.W.6 Dr. Jagdish Dehuri who was attached to C.H.C., Lahunipada as Medical Officer and he conducted post mortem examination over 10 the dead body of the deceased on 29.11.1998 and found number of ante mortem injuries on different parts of the body of the deceased. He also found injury mark on the neck of the deceased which according to him was caused by strangulation by means of cloth. He further opined that the bruises on different parts of the body of the deceased could have been caused by dragging on hard and rough surface. He opined the cause of death was asphyxia due to strangulation. The post-mortem report was marked as Ext.4.
The learned Trial Court has held that the prosecution has established beyond reasonable doubt that the death of the deceased was homicidal in nature.
The learned counsel for the appellant did not challenge the findings of the post mortem examination report.
After perusing the evidence on record, the inquest report Ext.2, post-mortem examination report Ext.4 and the statement of P.W.6 Dr. Jagdish Dehuri, we are of the view that the findings of the learned Trial Court regarding the nature of death of the deceased to be homicidal is based on clinching materials and therefore, we concur with such findings and we are also of the view that prosecution has established that the cause of death of the deceased was homicidal in nature. 11
9. Miss Bijaya Laxmi Tripathy, learned counsel for the appellant submitted that it is a case based on circumstantial evidence and the learned Trial Court was not justified in holding that the appellant was last seen together in the company of the deceased at about 10.10 p.m. on 27.11.1998 and at about 3 a.m. in the morning the deceased was found dead. The learned counsel further urged that once the last seen evidence is disbelieved, the other circumstances like boarding of the bus by the appellant at Birtoala square on 28.11.1998 morning and his absconding till 05.10.1999 are not sufficient in itself to form a chain so complete so as to unerringly point towards the guilt of the appellant.
Mr. Arun Kumar Mohnaty, learned Additional Standing Counsel on the other hand supported the impugned judgment and submitted that in view of the clinching circumstantial evidence, the learned Trial Court was quite justified in convicting the appellant for committing murder of the deceased.
10. We have thoughtfully considered the rival contentions vis-a-vis the evidences on record.
There is no dispute that the entire prosecution case hinges on circumstantial evidence. While assessing a case based 12 on circumstantial evidence, the Court has a duty to see that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law.
In the case of Sharad Birdhichand Sarda -Vrs.- State of Maharastra reported in AIR 1984 SC 1622, their Lordships have laid down five golden principles so as to constitute "Panchasheel" in the proof of a case based on circumstantial evidence which are as follows:-
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to 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 13
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."
In the case of Jaharlal Das -Vrs.- State of Orissa, reported in AIR 1991 SC 1388, it is held as follows:-
"The Court has to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused".
In case of Budhuram -Vrs.- State of Chhattisgarh reported in (2013) 1 Supreme Court Cases (Criminal) 727, it is held as follows:-
"The law relating to proof of a criminal charge by means of circumstantial evidence would hardly require any reiteration, save and except that the incriminating circumstances against the accused, on being proved, must be capable of pointing to only one direction and to no other, namely, that it is the accused and nobody else 14 who had committed the crime. If the proved circumstances are capable of admitting any other conclusion inconsistent with the guilt of the accused, the accused must have the benefit of the same."
In case of Kanhaiya Lal -Vrs.- State of Rajasthan reported in (2014) 2 Supreme Court Cases (Criminal) 413, it is held as follows:-
"Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
11. Coming to the materials available on record, it is very clear that the prosecution has failed to establish any motive on the part of the appellant to commit the crime. No doubt it is only the perpetrator of the crime who knows as to what circumstances prompted him to a certain course of action leading to the commission of crime. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on 15 its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
P.W.1 has stated that they had no prior enmity with the appellant. In view of the available materials on record, we are of the view that the prosecution has failed miserably to establish any kind of motive on the part of the appellant to commit the crime.
12. Since the prosecution has failed to establish any motive on the part of the appellant, we are to scrutinize the other circumstances available on record more carefully to see whether the guilt of the appellant is established or not.
The main circumstance against the appellant is the last seen theory. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased was found dead was so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the 16 accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in such a case.
P.W.1 has stated that they had a thatched house at Birtola where they were running a small tea stall. In the First Information Report, it is mentioned that the deceased was sleeping inside the house. The appellant came and joined P.W.1 and P.W.3 at 10 p.m. who were warming themselves in front of the tea stall by the side of the fire. When both P.W.1 and P.W.3 left for their duties, the appellant was sitting there. From the recitals of the First Information Report, it is clear that the appellant was not last seen in the company of the deceased rather the deceased was sleeping inside the thatched house and the appellant was warming up himself outside by the side of the fire.
P.W.1 developed his case narrated in the F.I.R. during trial and stated that while he, P.W.3 and the deceased were sitting by the side of the fire after taking their meal, the appellant came there at about 10 p.m. and sat with them and when he and P.W.3 left for their duties, the appellant and the deceased were sitting by the side of the fire and nobody else was there. It has been confronted to P.W.1 and proved through P.W.13 who has recorded the statement of P.W.1 that P.W.1 has 17 not stated that the deceased was also sitting by the side of the fire along with him and P.W.3 and he has also not stated that by the time he and P.W.3 left for their duties, the appellant and the deceased were sitting by the side of the fire. P.W.1 stated that the appellant alone was sitting by the side of the fire.
Thus not only in the First Information Report but also in the statement before police, P.W.1 has not stated about the last seen theory which he has developed during course of trial. Accordingly, P.W.1 cannot be said to be a truthful witness relating to this part of the prosecution case. The learned Trial Court was not justified in holding this contradiction to be a minor one inasmuch as the entire case of the prosecution is practically hinges on the last seen theory.
P.W.2 Paguni Munda has stated that the informant told him that on the previous night, when he and P.W.3 were sitting by the side of the fire near the tea stall, the appellant came there and later on when he and P.W.3 left for their duties, the appellant was sitting by the side of the fire and the deceased was in the house. This statement of P.W.2 corroborates the facts narrated in the F.I.R. as well as the statement of P.W.1 before police. Thus even before P.W.2, P.W.1 has not disclosed about the last seen of the appellant in the company of the deceased. 18
P.W.3 Suguna Munda has stated that when he and P.W.1 were warming themselves by lighting a fire on the road near the house-cum-tea shop, the deceased was sleeping inside the hut. He further stated that the distance between the place where they lighted the fire and the house-cum-tea shop of the informant was about 12 to 15 feet. He further stated that when the appellant came to the spot, he and P.W.1 left for the camp to guard. Thus the evidence of P.W.3 also runs contrary to the evidence of P.W.1 that when they left for their duties, the appellant and the deceased were sitting by the side of the fire.
When the deceased was sleeping inside her thatched house and the appellant was warming himself by the side of the fire in front of the house after P.W.1 and P.W.3 left the place, it cannot be said to be last seen of the appellant and the deceased together. The possibility of commission of murder of the deceased by any third person after the appellant left the spot cannot be altogether ruled out.
Thus we are of the view that there is no positive evidence to conclude that the appellant and the deceased were last seen together in the night of occurrence and therefore, the last seen theory as advanced by the prosecution miserably fails. 19
13. As we have disbelieved the last seen theory, the other circumstance that the appellant boarded the bus at Birtola square on 28.11.1998 at about 6.45 a.m. is not very much relevant to come to a finding of guilt of the appellant. Moreover this circumstance has not been put to the appellant in his statement recorded under section 313 Cr.P.C. Law is well settled that when the attention of the accused is not drawn to the incriminating circumstance during his examination under section 313 Cr.P.C., such circumstance cannot be used against him. Non- questioning of this particular circumstance and utilizing the same against him has certainly caused prejudice to the appellant. Examination of an accused is not a mere formality. It has practical utility for criminal Courts in affording opportunity to the accused to explain the incriminating circumstances. (Ref:-
(1997) 13 Orissa Criminal Reports (SC) 57, Ratan Sinha
-Vrs.- State of H.P.).
Thus we are of the view that the learned Trial Court was not justified in holding that the appellant was found going away from Birtola in a bus which was consistent with the fact that in between 10 p.m. of 27.11.1998 and 6.45 p.m. of 28.11.1998, he was at Birtola.
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14. The next circumstance relied upon by the learned Trial Court was that the appellant was absconding from 28.11.1998 till 05.10.1999. It is the case of the appellant that he was staying in his brother's house at Sector-6, Rourkela. Except making a statement that he raided at different places including the relations' houses to apprehend the appellant, the I.O. has not proved any search list. No witness has been examined to corroborate the statement of the I.O.
In case of Bata Munda -Vrs.- State of Orissa reported in Vol. 59 (1985) Cuttack Law Times 370, it is held as follows:-
"Absconding is a weak link in the chain of circumstances. Even an innocent person may feel panicky and try to keep out of the way if he learns of his false implication in a serious crime reported to the police. It is not, by itself, conclusive either of guilt or of a guilty conscience and may only lend some assurance to the other evidence pointing to the guilt of an accused person".
Thus in absence of any other cogent materials, in view of the flimsy evidence of the I.O., the absconding of the appellant cannot be said to be sufficient to establish the guilt of the appellant.
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15. We are of the view that the assessment of evidence has not been done in accordance with law by the learned Trial Court and basing mainly conjecture and suspicion, the appellant was found guilty.
The conclusion arrived at by the learned Trial Court in convicting the appellant and the reasonings assigned for arriving at such a conclusion is not borne out of the record and it seems that the learned Trial Court has proceeded pedantically without making an in depth analysis of facts and circumstances and evidence led in the trial. In our opinion, the legal duty to separate the grain from the chaff has been abandoned by him and therefore, his entire approach is faulty and infallible which deserves to be rectified and upturned.
In case of State of Haryana -Vrs.- Bhagirath reported in 1999 Supreme Court cases (Criminal) 658, it is held as follows:-
"The Principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have 22 committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
In case of Jaharlal Das (supra), it is further held as follows:-
"The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of "may be true". But there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions."
Law is well settled that the suspicion, howsoever strong or emotional consideration cannot take the place of proof. Fouler the crime, the higher should be the proof. In the absence of legal proof of a crime, there can be no legal criminality. Moral conviction regarding the involvement of the appellant in the commission of crime cannot be a substitute for a legal verdict based upon facts and law.
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In view of the facts and circumstances discussed above, we are not able to agree with the findings of the Trial Court and we hold that the case against the appellant has not been established by the prosecution beyond all reasonable doubt.
In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence passed there under is hereby set aside and the appellant is acquitted of the charge under section 302 of the Indian Penal Code. The appellant who was released on bail by this Court during pendency of the appeal vide order dated 03.04.2013 in Misc. Case No.58 of 2012 was subsequently taken into custody as per the order of this Court dated 29.10.2014. The appellant is directed to be released forthwith if his detention is not required in connection with any other crime.
Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
I. Mahanty, J. I agree.
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Orissa High Court, Cuttack I. Mahanty, J.
The 13th July, 2016/Sukanta