Orissa High Court
Araque Lutifi @ Dazy vs State Of Orissa on 12 September, 2002
Equivalent citations: 95(2003)CLT35
Author: B. Panigrahi
Bench: B. Panigrahi, P.K. Misra
JUDGMENT B. Panigrahi, J.
1. The sole appellant in this appeal has challenged the order of his conviction under Sections 302/392/201, read with Section 34 of the Indian Penal Code (for short "IPC') as passed by the learned Additional Sessions Judge, Khurda. By the said order, the appellant has been sentenced to undergo imprisonment for life under Section 302, read with Section 34 IPC, and rigorous imprisonment for five years and one year under Sections 392 and 201 IPC respectively, it has further been directed that in view of the sentence passed under Section 302, read with 34 IPC, the latter sentences would not be operative. But, in case the same is set aside, varied or modified, the other sentences shall run consecutively.
2. The factual matrix leading to this appeal is as follows :
The appellant along with his two other associates stood prosecuted for commission of offences punishable under Sections 364/302/ 392/201 read with Section 34 of the Indian Penal Code, in short 'IPC', for having kidnapped one Azad Khan @ Chunia, the driver of an Ambassador Car (Taxi) bearing registration No. ORC-2908 on 30th January, 1994, in consequence of which they committed murder of Chunia and robbery of the said Ambassador car from the possession of the deceased. It has been further stated that theyintentionally caused the death of Azad Khan @ Chunia by strangulation with the assistance of a rope and caused disappearance of evidence by throwing the deadbody in a ditch near Dadhimachhagadia stone quarry with the intention to screen themselves from the legal punishment in furtherance of their common intention. The appellant Afaque Lutifi alias Dazy was also a professional driver. He was driving a four-wheeler in a travel agency at the material time. The deceased Azad Khan's elder brother Shamser Khan (P.W.16) owned an auto electric workshop at Haripur Road, Cuttack since 1993. P.W. 12 Abdul Sayeed was then working in the said auto electric work-shop as an apprentice during 1994. The appellant Dazy used to bring the car, which he was driving, to the auto electric workshop of P.W. 16 at times for repair of dynamo, etc. P.W. 19, Maiuddin Khan happened to be another brother of the deceased. He also knew the appellant Dazy as he had got a private white coloured Ambassador taxi bearing registration No. ORC-2908 which was being driven by his younger brother, the deceased Azad Khan @ Chunia. On 30th January, 1994 at about 3.40 P.M., the appellant Dazy came to Gourishankar Park, Cuttack and requested P.W. 19 to spare his Ambassador taxi on hire to Jatni. Since P.W. 19 had earlier acquittance with the appellant, who was a driver, he did not entertain any suspicion. On that day, the appellant gave an impression to P.W. 19 that the car driven by him had been kept back by the owner Salim of Daraghabazar for his own use. At that time, his associates, namely, accused Asaraf Alii (since acquitted) and Amina Khan (absconding accused) were also standing close to the appellant Dazy. The hire charges for up and down trip to Jatni was settled at Rs. 325/-. The appellant further impressed upon P.W. 19 that he would go to a place near Hanuman Mandir of Buxibazar for collecting his personal belongings. Thus, P.W. 19 noticed the appellant and accused Asaraf Alli occupying the rear seat and accused Amina Khan occupying the front seat of the car, while his brother drove the vehicle. P.W. 12 who was working as an apprentice in the auto electric workshop also saw the deceased in the company of the appellant and his associates. After the appellant collected his personal belongings, all of them left for Jatni in between 5.00 P.M. and 5.30 P.M. . The deceased did not return till 8.00 P.M. in that night. Therefore, P.W. 19 went to the house of the other brother Shamser Khan (P.W. 16) and informed about the deceased having not returned to the house., P.Ws. 12 and 16 went to Buxibazar to procure the residential address of the appellant at Jatni from his relation from whose house he had collected his personal belongings. Finally, on 31.1.1994, they could locate the appellant at Rajabazar, Jatni between 7.30 and 8.00 P.M. When they asked the appellant about the car as well as the deceased, the latter replied that after taking the fare from him, the deceased had gone back to Cuttack with the car.
P.W. 23, Bhabani Sankar Raju, who was the D.I.C. of Khurda Police Station, had received an unconfirmed information on 31.1.1994 at about 2.00 P.M. about floating of a deadbody of a male youth in a ditch near Dadhimachhagadia stone quarry. On receipt of such information, he entered it in the station diary bearing S.D. No. 817 dated 31st January, 1994 and rushed to the spot along with other police staff. On their arrival, they noticed the deadbody of a male youth floating in the water being clothed with a black coloured full pant and a yellow shirt of synthetic material. Somehow or other with the help of local people, they recovered the dead body from, the ditch and noticed multiple number of ligature marks around the neck, below the left ear and at the left rear hair line angle of the same. They also found the tyre impressions of a four-wheeler on the dusty track near about the ditch. After having recovered the deadbody and observed the physical surroundings, P.W. 23 treated the case as one under Sections 302/201, IPC and drew up plain paper F.I.R. at 3.00 P.M. on 31st January, 1994, on the basis of which, a case was registered and further investigation was carried on. During the course of investigation, inquest was held over the dead body of the deceased on that date at about 5.00 P.M. by P.W. 24, the S.I of Police, Khurda Police Station. In the inquest report (Ext.6), certain injuries appearing on the person of the dead body were noted. At 6.00 P.M. the dead body was despatched to the Sub-divisional Hospital/Khurda, for post-mortem examination. The photographs of the deceased had also been taken.
On 2nd February, 1994, P.W. 16 Shamser Khan appeared before P.W. 23 and reported that his brother Ajad Khan (c) Chunia had not returned home along with the vehicle bearing Registration No. ORC- 2908, which had been taken by the appellant on hire. On receipt of such information, P.W. 23 showed him the photographs of the unidentified dead body floating in the ditch on 31st January, 1994 and P.W. 16 identified the same to be that of his brother Azad Khan @ Chunia. Thereafter, the dead body was exhumed and shown to P.W. 16 and his relations, who identified it to be that of Azad khan @ Chunia.
On 9.2.1994 at 9.00 A.M. P.W. 23 seized a key ring locket and some other articles belonging to the appellant Dazy, which had been brought from his relation's house in the car driven by the deceased, vide seizure list Ext. 15. The appellant had kept those articles in the house of one Bidyut Kumar Pradhan of Jatni. On the same day, the Cash Register maintained for Booth No. 3 of Rushikulya Toll gate at Ganja was also seized wherein it was reflected that the Ambassador car bearing registration No. ORC-2908 had crossed the check gate towards Chhatrapur side and the seizure list has been marked as Ext. 16. After receiving information from Mr. K. Jaya Rao, Circle Inspector of Police, S. Kota in Andhra Pradesh about the seizure of an Ambassador car in the night between 7th and 8th February, 1994, P.W. 23 proceeded to S. Kota on 10.2.1994 and procured the vehicle after obtaining the orders from the learned J.M.F.C., S. Kota. On 16.2.1994 at 2.00 P.M. P.W. 23 arrested the accused-appellant Araque Lutifi @ Dazy and took him into custody. While in custody, he made a disclosure statement of his wearing apparels which he had put at the time of occurrence, and accordingly those were seized. The appellant also produced a pair of old Sandak Bata Chappals (Primo Model) and disclosed that those belonged to the deceased, which had been marked as M.O.I. Another cotton rope was also seized vide Ext. 13, which was marked as M.O.II. on 13.5.1994, all the seized articles were sent through the learned S.D.J.M., Khurda to the Chemical Analyst vide forwarding report Ext. 3, in response to which, the Director-cum-Chemical Examiner, State F.S.L., submitted three reports, which were marked as Exts 2. 2/1 and 2/2 respectively. On completion of investigation, chargesheet was submitted against the appellant, accused Asaraf Alii (since acquitted) and accused Amina Khan who was shown as absconder.
3. The defence plea was one of denial of the occurrence. The appellant also pleaded to have been falsely implicated in this case.
4. The prosecution case mostly rests on circumstantial evidence. The cardinal principles of criminal jurisprudence regarding the case depending upon circumstantial evidence is that there must be a chain of events so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It must be such, from which it could be inferred that in all human probability the act must have been done by the accused. Circumstantial evidence admits of no other rational explanation than that of the guilt of the accused. The link in the chain of events must be complete and it can be unequivocally point to the guilt of the accused and exclude any hypothesis consistent with the innocence of the accused. Keeping the aforesaid principle in mind, let us now advert to the circumstances placed by the prosecution in order to bring the culpability against the appellant.
5. The prosecution has relied upon the following circumstances, namely :
(1) The deceased was last seen in the company of the appellant, accused Asaraf Alli and the absconded accused Amina Khan on the date of incident between 3.40 P.M. at Gourishankar Park as well as Buxibazar, Cuttack.
(2) The appellant gave recovery of a rope, M.O.II and also the wearing apparels worn by him at the time of occurrence.
(3) The appellant contracted with P.W. 19, Maiuddin Khan, brother of the deceased for sparing his car bearing registration number ORC-2908, in which the deceased was the driver, on hire from Cuttack to Jatni and back for Rs, 325/-.
(4) The deceased, appellant and his associates left Cuttack between 4.30 P.M. and 5.00 P.M. towards Jatni. The appellant collected his personal belongings during that time from Buxibazar.
(5) The car passed through Chhatrapur Check gate in the night of 30th January, 1994.
(6) The appellant and his associates were seen at Srinivas Nagar under Sriharikota P.S. in the district of Vijayanagaram in the early morning of 31st January, 1994 with the car in question.
(7) The original number plate of ORC-2908 was replaced with another number AID-1772 by the absconding accused Amina Khan.
(8) The appellant gave evasive reply to P. W. 19 regarding the whereabouts of the deceased.
(9) The resin covering the seat of the car contained human blood stains.
(10) The deceased was wearing black coloured pant and yellow shirt at the time of departure from Cuttack.
(11) P.W. 19 identified the dress of the deceased and also his photographs.
(12) The dead body was handed over to the brother of the deceased after it was identified by him and his relations.
6. The prosecution has taken a formidable point while bringing home the charges against the appellant on the last seen theory. P.W. 19 was the brother of the deceased. From his statement, it Has transpired that he was the owner of the Ambassador car bearing registration No. ORC-2908. His brother Azad Khan @ Chunia was driving the same. On 30th January, 1994 at the request of the appellant for sparing his car at 3.45 P.M., he agreed to lend the same on hire of Rs. 325/- for the journey from Cuttack to Jatni and back. P.W. 19 did not entertain any suspicion inasmuch as the appellant was known to him since he too was a driver under one Salim, who was the owner of another car. On being questioned by P.W. 19 as to why the appellant wanted his car, the appellant is said to have replied that since his owner required the vehicle for his personal use, he wanted to take the car on hire from P.W. 19. From his evidence, it is further clarified that besides the appellant there were two other persons out of whom he knew Asraf Alli, the other co-accused (since acquitted). He presented a graphic picture by stating that the third man of short height and white complexion sat in the front seat while his brother Chunia was driving the car, The appellant and the other accused (since acquitted) sat on the rear seat and the vehicle proceeded towards Buxibazar for collecting the personal belongings of the appellant. This statement has been corroborated by P.W. 16, the other brother of the deceased. From the evidence of P.W. 16 it is further crystal clear that his elder brother owned a car bearing registration No. ORC-2908 which the deceased used to drive as its driver. The appellant Dazy took the car on hire. P.W. 16 knew the appellant since he used to drive another car bearing registration No. 1187. Turning to the evidence of P.W. 12. It has transpired that he had seen the deceased, appellant and his associates around 4.30 to 5.00 P.M. with the Ambassador car in question, which was being driven by the deceased. The appellant Dazy came to collect his belongings at the relevant time. P.W. 12 was however not able to identify the other accused Asraf Alli (since acquitted). From the statement of P.W. 13, we find that there has been sufficient corroboration to the effect that the appellant had stacked his belongings in his house and collected the same about two and half years before he was examined. Therefore, on a co.mbined reading of the evidence of P.Ws. 19, 16 and 12, it has been proved by the prosecution that the deceased was last seen in the company of the appellant and his associates just before the departure from Cuttack between 4.30 and 5.00 P.M.
7. From the evidence of P.W. 9, Md. Idrish, it is gathered that he was working as a driver under the O.S.R.T.C. at Jatni. On 30th January, 1994 between 7.30 and 8.00 P.M., while his vehicle was proceeding towards the burial ground near village Taraboi, he found a white Ambassador car coming from opposite direction. Even though the car number and passengers sitting therein could not be identified, yet from the subsequent discussion it has appeared that the car went towards that direction. P.W. 23, on being learnt that a dead body was afloat in a ditch near Dadhimachhagadia stone quarry, diarised the incident vide S.D. No. 107 and proceeded to the spot with other police staff. He found the dead body of a male youth floating in the water. It was salvaged and brought out from the ditch and accordingly inquest report was prepared vide Ext.6 in presence of the witnesses. Thereafter, he drew plain paper F.I.R. marked Ext. 14, on the basis of which a case under Sections 302/201, IPC was registered. P.Ws. 14 and 15 were also the witnesses to the inquest. On a bare perusal of Ext. 6, it is further established that an unknown dead body of a male youth with ligature marks around the neck was found. In the inquest report, it was described that the deceased was wearing a deep black pant and a yellow shirt.
8. It is to be remembered that for commission of crimes, motive plays an important role and becomes the compelling force to commit a crime. Therefore, motive behind the crime is a relevant factor for which evidence may be adduced. It prompts a person to form an opinion or intention to do certain illegal act or even a legal act by an illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty for the offence charged with. But, at the same time, it should not be lost sight of the fact that absence of proof of motive does not render the evidence having bearing on the guilt of the accused otios. Quite often, it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. In this case, of course, from the evidence placed before us through P.Ws. 16 and 19, an irresistible conclusion can safely be arrived that with a view to commit robbery, the appellant in collusion with his associates made belief to P.W. 19 to spare his car on hire and in order to achieve the object of robbery, the deceased had,to sacrifice his life.
9. Mr. Nayak, learned counsel appearing for the appellant, has strenuously urged that there are no cogent evidence to establish that the dead body recovered form the ditch was that of Chunia. In this regard, we shall have to place utmost reliance on the evidence of P.W. 23, the I.O. Till 2nd February, 1994 there was absolutely on evidence to connect that the dead body was of Azad Khan @ Chunia. On 31st January, 1994 around 2.00 P.M.. P.W. 23 , having learnt from a rumor at Khurda market that the dead body of a male youth was floating in a ditch near Dadhimachhagadia stone quarry, proceeded with the police party to the scene of occurrence and found that the dead body of a male youth was afloat in the water. After it was salvaged and brought to a nearby place, it was detected that the deceased was wearing a dark coloured black full pant and a yellow full shirt. There were no shoes on the feet. Following such recovery of the dead body, inquest was held on the same. From the inquest report, it has been established that the deceased was wearing a dark coloured full pant and a yellow full shirt. Therefore, at the earliest point of time, the dress clothed by the deceased had been noted in the inquest report, which was prepared in presence of the witnesses and proved before the trial Court. After such inquest was made, plain paper F.I.R. was drawn up. In the F.I.R. it was also noted that the deceased was wearing a dark coloured full pant and a yellow full shirt of synthetic material P.Ws. 16 and 19 have corroborated that the deceased was wearing a black coloured full pant and yellow full shirt. On 2nd February, 1994, P.W. 19 had been to the police station and identified the pant and shirt, which and already been seized by P.W. 23, to have belonged to the deceased. Mr. Nayak was sceptical about the statement made by P.W. 19 that this witness was silent regarding the identity of the deceased. He placed the evidence of P.W. 23, from which it has transpired that the photographs of the deadbody were taken through a professional photographer. The brothers of Azad khan @ Chunia, namely, P.Ws. 16 and 19 had identified the dead body with the help of photographs. Therefore, this omission by P.W. 19 creates a great doubt regarding the identity of the deceased. Such an argument cuts on ice inasmuch as there are ample evidence that the deceased Azad Khan was in the company of the appellant and absolutely there has been no explanation offered by the appellant in his statement recorded under Section 313, Cr.P.C. as to the whereabouts of the deceased Chunia. Secondly, the wearing apparels of the deceased, such as, black coloured pant and yellow shirt, had been seized on production by Constable No. 1381 after post-mortem examination on 1st February, 1994 P.Ws. 19 is stated to have identified the dress by saying that those belonged to the deceased. Thus in the aforesaid backdrop, ;there has been no room for doubt that it was the dead body of Azad Khan @ Chunia. Even assuming this to be an omission, it would not shake the credibility of the witness regarding the identity. Moreover, P.W. 16 and 19 were the own brothers of the deceased, who would not commit any mistake in identifying their deceased brother. A faint attempt has been made on behalf of the appellant that the case of the prosecution became brittle on account of the photographs having not been proved. The evidence led by the prosecution with regard to the photographs was only to establish the identity of Azad Khan @ Chunia. But since the prosecution case has been proved through other cogent, clear unimpeachable and clinching evidence regarding the identity of Chunia, there appears to be no further necessity to prove the negatives and positives of the photographs. In this regard, a recent judgment of the Apex Court in State ol Orissa v. Dibakar Nayak and others, (2002) 5 SCC 323, has been relied upon, in paragraph 20 whereof it has been stated thus ;
"Regarding non-seizure of the torchlight, used by the witness to see the occurrence, it was held in Balo Yadav v. State of Bihar that such an omission cannot be considered as a lapse on the part of any investigating officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case."
10. Mr. Nayak wanted to make a capital out of the fact that neither the negatives nor the positives of the photographs of the deceased, stated to have been taken, was produced in Court. It is significant to note that before the trial Court the appellant had not questioned about the identity of the deceased, rather he had taken a false plea by claiming his innocence. In this regard, we place reliance on a judgment of the Supreme Court in Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh, AIR 2001 SC 2677, wherein it has been observed :
"In a case based on circumstantial evidence, one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances which could matter. Hence, it would be improbable for the Court to cull out one circumstance from the rest for the purpose of giving a different meaning to it."
Even assuming that the photographs could not be marked as exhibit, but that by itself would not render the findings of the trial Court illegal.
11. In the present case, the plea taken by the appellant in his statement recorded under Section 313 Cr.P.C. is one of complete denial. But from the abundant evidence produced before the Court below, it has been firmly established that the appellant had taken the car on hire and it was being driven by the deceased Azad. From paragraph-25 of the evidence of the I.O., P.W. 23, it is further gathered that after identification of the dead body of Azad khan, it was handed over to Shamser Khan, P.W. 16. The relevant portion of the evidence of P.W. 23 is quoted below :
"25. Shamser Khan, Sk. Yakub, Sahajan Khan, Sk. Salim all of Oriya Bazar, P.S. Lalbag, Dist. Cuttack identified the dead body of the deceased to me as that belonging to one Azad Khan alias Chunia son of late Ahmed Khan of Oriya Bazar, Cuttack.
12. We wish to express another significant factor in this case. In the night of occurrence i.e. 30th January, 1994 possibly after the commission of the offence, the vehicle proceeded towards Andhra. While enroute at Chhatrapur gate, the number of the vehicle was noted as ORC-2908. Subsequently, P.W. 23 the I.O. received information that the vehicle in question had been seized by the Shriharikota police and the number of the vehicle had been changed to AID-1772. The I.O. proceeded to Vijayanagaram in the State of Andhra Pradesh, approached the learned J.M.F.C., S. Kota, Vijayanagaram and obtained an order to take custody of the vehicle. After it was brought to Orissa, he requisitioned the services of the D.S.F.L. team who opined that there has been over-writing on the number plate by substituting AID-1772. The xerox copy of the R.C. Book had also been marked as Ext. B, which stood in the name of P.W. 19. The opinion of the Scientific Officer, D.S.F.L., Khurda has been marked as Ext. 17. From the aforesaid document, it has further been established that blood stains were detected on the resin.
13. From the evidence of P.W. 22, Pal Kutty Srinu, it has transpired that he knew the absconding accused Amina Khan, who used to come to the house of A. Apparao and Babulal, which was close to his house. In the early morning of 31.1.1994, Amina came with a white Ambassador car to his locality. He parked the car in a vacant place near his house. Two persons were present along with him on 31.1.1994. All of them went to a motor mechanic for the repair of the car. Amina Khan brought a tin of paint and a brush and some audio cassettes. On the query made by P.W. 22, the accused Amina replied by stating that the Orissa numbered vehicle would not be allowed to ply in Andhra unless the number plate is changed. As some doubt was raised, the father of P.W. 22 informed this incident to S. Kota police. He was able to identify the appellant and the other acquitted accused besides Amina. P.W. 21 also corroborated the evidence of P.W. 22 to the extent that she knew Amina who was coming to the house of Babulal and he brought the car at about 6.30 A.M. on 31st January, 1994. The evidence of P.W. 20 is also to the same effect. Thus, on a combined reading of the evidence of P.Ws. 20, 21, 22, it has been fully established that the car in question was parked near their house on 31st January, 1994 at 6.30A.M.
14. Mr. Nayak has advanced an argument by submitting that even though the appellant was very much available from 31 st January, 1994 night to 15th February, 1994, then why was he not arrested till 2.00 P.M. of 16.2.1 994. Therefore, the conduct of the I.O. appears to be full of suspicion. While rebutting such submission, learned Additional Government Advocate brought to our notice that from 2nd February, 1994 till 16th February, 1994, the I.O. was busy in recovery of the car under the orders of the learned J.M.F.C., S. Kota, Vijayanagaram district. He was also busy in searching for other materials against the accused. On 9.2.1994 at 9.00 A.M. P.W. 23 had seized the key ring locket and other articles belonging to the appellant under the seizure list, Ext. 15. Thus, there has been no delay in arresting the appellant which was effected on 16.2.1994. Immediately after his arrest, his statement was recorded under Section 161, Cr. P.C. and while in custody, the appellant led the I.O. and other witnesses to his house and gave recovery of a golden yellow shirt and a white terylene full pant, which he had put on at the time of occurrence. These wearing apparels were seized and sent to the State Forensic Science Laboratory. The Chemical Analyst has opined that it contained human blood of 'A' origin. Even though the blood group of the deceased could not be ascertained, the fact that the garments of the appellant contained blood stains firmly establishes the guilt against him. On 17.2.1994 the appellant led the I.O. as well as the witnesses to a distance of 12 meters towards the south from Dhobani Sankha by the side of National Highway No. 5 in mouza Chhatrama and gave recovery of a pair of old sandak Bata Chappals (Primo model) belonging to the deceased and a piece of cotton rope,.which had been seized vide Ext. 13. on evaluation of the evidence of P.W. 10, Arun Prasad Parida, it is established that the appellant while in custody led the I.O. to a bushy place and offered discovery statement to have thrown a pair of chhapals and also a cotton rope. The place wherefrom those materials were recovered was inaccessible and not visible to outsiders. Thus, the recovery of the incriminating materials under Section 27 of the Evidence Act also goes a long way in establishing the guilt of the appellant. In this connection reliance can be placed on the judgment in State of H.P, v. Jeet Singh, (1994) 6 SCC 370, wherein the Supreme Court observed as follows ;
"There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
Following the aforesaid decision, the Hon'ble Supreme Court in a recent decision in State of Maharashtra v. Bharat Fikira Dhiwar, AIR 2001 SCW 4609, has held :
"It is now well settled the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions."
15. While considering the present case, we also rely on the judgment of the Supreme Court in State of West Bengal v. Mir Mohammad Omar and others, AIR 2000 SCW 3230. On careful reading of the facts of the reported case, it appears to us that the same are quite similar to the facts of the present case. The abductors have not given any explanation as to what happened to Azad khan @ Chunia after he was abducted by them. At the point of departure from Cuttack, there were four occupants in the car including the deceased, in the subsequent morning at about 6. to 6.30 A.M. at Sriharikota only three persons excluding the deceased were present, which is suggestive of the fact that the appellant and his other associates must have killed him. The Supreme Court in the aforementioned case held in the following manner :
"x x x The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
xxx xxx xxx Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring, the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."
16. In this context, the legal principles embodied in Section 106 of the Evidence Act can profitably by utilised.
17. In the instant case, the death of Azad Khan @ Chunia has not been seriously disputed, nor has it been disputed that the death of Chunia was homicidal in nature. The evidence of P.W. 1 would further buttress the case of the prosecution that Azad Khan @ Chunia died due to asphyxia having injuries on his neck, which are described hereinbelow :
(i) Mark of ligature on the neck, transversely situated, below the thyroid cartilage, which is continuous (i.e. around the neck) in two rounds.
(ii) There was bleeding from the nose and the face was cyanosed.
(iii) Abrasions round about the ligature mark on the neck.
18. The plea of ignorance taken by the appellant was nothing but a issues of falsehood. Once it is found that a false defence plea has been advanced, it would be recorded as an additional link in the chain of circumstances. In this regard, we may rely upon a recent judgment of the Supreme Court in Swapan Patra and others v. State of West Bengal, 1999 SCC (Criminal) 1153, wherein the Supreme Court has observed :
"It is well settled that in a case of circumstantial evidence when the accused offers anvexplanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. Applying the aforesaid principle, we have no hesitation to hold that the circumstances established in the case complete the chain of circumstances to prove the charge of murder against the appellant Swapan patra and, therefore, the conviction of appellant Swapan patra has to be upheld under Section 302, IPC. So far as the other two appellants are concerned, as stated earlier, in the absence of any positive evidence even about their presence in the house at the relevant point of time, it is difficult to rope them in even if all other circumstances narrated earlier are established and, therefore, they are entitled to an order of acquittal."
19. In another recent judgment in Ezhil and others v. State of Tamil Nadu, 2002(3) Supreme 589, the Supreme Court held that the appellant having miserably failed to explain the possession of the car appears to be the strongest circumstance and accordingly, presumption can arise under Section 106 read with illustration (a) to Section 114 of the Evidence Act.
20. Mr. Nayak while winding up of his submission, advanced a fervent plea that the co-accused having been acquitted and another not yet apprehended, the appellant cannot be held guilty for having committed murder after abduction of the deceased. But we are not persuaded by such submission. In this regard, the evidence placed by the prosecution would unfailingly and unerringly establish that it was the appellant who had taken an important role for taking the car on hire as well as for commission of the offence of murder. Considered in the aforesaid background, the plea that the acquittal of the co-accused has rendered the prosecution version weak, appears to have little force. The acquittal of the co-accused was on the ground of non-corroboration and non-identification by the witnesses. In this regard, we rely on the judgment of the Supreme Court in Devender Pal Singh v. State of NCT of Delhi and another, (2002) 5 SCC 234, wherein it has been observed as follows :
"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused.
If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take the place of judicial evaluation."
21. On a comprehensive study of the evidence and also on proper appreciation of law, we do not see any merit in this appeal, which is accordingly dismissed. The order of conviction and sentence passed against the appellant is hereby confirmed.