Orissa High Court
Bibachha Digal vs State Of Orissa on 28 October, 2016
Author: Vinod Prasad
Bench: Vinod Prasad
HIGH COURT OF ORISSA: CUTTACK
JAIL CRIMINAL APPEAL NO. 3 OF 2009
From the judgment and order dated 11.08.2008 passed by
Shri J.J.Patro, Sessions Judge, Phulbani in S.T. No. 52 of 2007.
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Bibachha Digal ... Appellant
-Versus -
State of Orissa ... Respondent
For Appellant ... Mr. Pulakesh Mohanty,
Advocate.
For Respondent ... Mr. L. Samantaray,
Standing Counsel.
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PRESENT:
THE HONOURABLE SHRI JUSTICE VINOD PRASAD
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Date of hearing: 06.10.2016 : Date of judgment: 28.10.2016
Vinod Prasad, J.Appellant-Bibachha Digal, along with acquitted accused Banita Digal were prosecuted by Sessions Judge, Phulbani in S. T. Case 52 of 2007 State Vrs. Bibachha Digal and another for offence U/s. 302, 201/34 of I.P.C., emanating from Phulbani Sadar P.S.Case No. 76 of 2006, relating to G. R. Case No. 438 of 2006 of the Court of SDJM, Phulbani, and while 2 Banita Digal was acquitted of all the charges against her, appellant was adjudged guilty of offence U/s. 302 and 201 I.P.C. and consequently was convicted for those offences and sentenced to life imprisonment with a fine of Rs. 200/- (Rupees Two Hundred Only) and in default thereof to serve one month further Rigorous Imprisonment for the charge of murder U/s. 302 I.P.C. and 3 years Rigorous Imprisonment with fine of Rs. 200/- (Rupees Three Hundred Only) and in default to serve one month further imprisonment U/s. 201 of I.P.C. Both the sentences have been directed to run currently and the benefit of set off has been conferred on the appellant vide impugned judgment and order dated 11.08.2008. Hence this appeal by the convicted accused challenging impugned judgment and order referred to herein above.
2. Prosecution case as disgorged in the FIR and later on unfurled before the Trial Court, stated concisely, indicates that one Late Chhanchana Behera, resident of Phulbani Harizan Sahi under Town Police Station, Phulbani, Dist-Kandhamal had two sibling issues, son Kastha Behera/PW1 and daughter Ponia Naik/PW2, who was married to one Parameswar Naik. Kastha Behera/PW1 had two sibling issues, son Bipra Charan Behera/PW8 and daughter Ambika Behera,(deceased). Appellant Bibachha Digal, resident of village Dadikaju, P.S. 3 Phulbani Sadar, District Kandhamal is the husband of Ambika, the deceased. According to the trotted story, appellant and deceased, who both were laborers, being infatuated in love towards each other had eloped and were in living relationships. No formal marriage according to the customary rites was solemnized in between them. Initially both of them resided in Dadikaju, village of the appellant, but subsequently to augment their income they came to Phulbani and started residing in a rented house. Sometimes thereafter, unfoundedly, believing the deceased to be a trollop, that the appellant used to physically assault her and create Gandogol. After staying in Phulbani Sadar for some time the appellant and the deceased returned to appellant's village Dadikaju where the deceased stayed for another four or five months and thereafter she came back to her parental village and started living with the informant/PW1. It seems that during this period the deceased had made an oral complaint before Rupashree Pratibeshi Mahila Samitee Narisangh, of which Namita Behera/PW3 was the President and Niroda Behera/PW9 was the Secretary, against the appellant for assaulting her and on that basis the Samiti had initiated action against the appellant by convening a meeting. Amidst the meeting the deceased had disclosed that the appellant had solemnized bigamous marriage with the acquitted accused 4 Banita Digal, who is his second wife. Appellant had assured in the meeting and had promised to take the deceased back to his house and maintain her dignifiedly. In accordance with the decision of the Nari Sangh, informant father/PW1, accompanied by Ponia Naik/PW2 and his son Bipra/PW8 had taken the deceased to the appellant's house and had left her there. The prosecution evidence after this is somewhat garbled, but it is apparent that a fortnight after their return because to know the welfare of the daughter or because of some rumor aired that the deceased is missing from the house of the appellant, that PW1has sent Ponia Naik/PW2 to inquire about the welfare of the deceased. PW2 when came to Dadikaju did not find the deceased and the appellant and she was informed that they had gone out since last eight or ten days. PW2 therefore returned and informed PW1 about missing of his daughter. On this, PWs1, 2 & 8 came to Dadikaju where they could not locate the appellant and the daughter and on inquiry they were informed that the daughter-Ambika has been murdered by the appellant. The Ward Member of the said village took them to a place near a bridge where the informant spotted one Saaya, one Sweater lying besides one skull. Sensing that the daughter had been done to death that the informant got his FIR/Ext.1 slated down through one Madhusudan Behera/PW7, arraigning both, the 5 appellant as well as second wife (acquitted accused Banita Digal) as perpetrators of the crime, covered a distance of 8 kms. and lodged his FIR at police Station Phulbani Sadar, on 27.11.2006 at about 9 A.M., which was registered as Crime No. 76/06, u/s 302, 201,34 I.P.C. mentioning date and time of occurrence as 13.11.2006 night.
3. Rajendranath Reddy/PW6, OIC Sadar Police Station, Phulbani, had registered the case by preparing formal FIR Ext.1/3 and he immediately set a foot investigation, during course of which I.O./PW6 examined the complainant and made a request to the Superintendent of Police, Kandhamal for deputing Scientific Team and Photographer. At 9:40 AM, PW6/ I.O. came to the spot where at 10:10 AM he received the information regarding presence of the accused at Bahada Sahi. From Bahada Sahi bus stand both the accused were apprehended at 11 AM and were brought to the police station and their formal arrest was shown at 1.30 P.M. While in custody appellant made a confessional statement disclosing place of burial of the deceased. Relevant portion of such statement is Ext. 2/1. Appellant, through his disclosure statement, also led to the discovery of the shawl, which was used as the weapon of offence. Ext. 2/3 is the disclosure statement of the appellant. A spade and one shawl were got recovered by the appellant from 6 his house in village Nedikaju vide seizure list Ext.3/1, containing accused signature as Ext. 3/3. Thereafter the accused led the I.O. and the witnesses to Kangeinala and had pointed out the place where the dead body of the deceased was buried. After digging out to some depth, the accused had brought out one saaya of red colour, one saree and one blouse which were seized vide seizure list Ext. 4/1. Same day I.O. visited the spot near the bridge in Kangeinala and a spot map was prepared along with I.O.'s observation vide Ext. 7. Search of the nearby place brought out skull, ribs and some other bones, scattered at the spot which were collected. Inquest was made in presence of the Executive Magistrate, which are Exts. 5/1, 6/1 and 8. Witnesses Banchhanidhi Digal, Lochan, Niranjan and Executive Magistrate, Chinmayee Konhar, Madhusudan Behera and Lankeswar Mallick were also examined and their statements were recorded. Same day at 1 PM Scientific Team arrived at the spot and conducted the physical examination of the same. Same day I.O./PW6 dispatched the collected bones to F. M. & T, Department of MKGC for examination and report. Following day other witnesses Ponia Naik and Bipra Charana Behera were examined, that both the accused were forwarded to the court. On the third day I.O. examined witnesses Bimba Digal and 7 Laxmi Digal. F. M. & T, Department report was received by the I.O. on 10.02.2007. Thereafter Investigating Officer examined some other witnesses, seized the photograph of the deceased on production by PW1, the informant, through Ext.9. On 25.02.2007 witness Rajesh Behera was examined. I.O. made a request to SDJM, Phulbani for forwarding the seized articles and photograph to SFSL, Bhubaneswar for examination and report through forwarding report Ext.10. On 15.03.2007, the SDJM also forwarded a spade and seized garments of the deceased to the SFSL through forwarding report Ext. 11. Ext. 12 is the report of the Scientific Officer concerning the articles sent by the I.O. Ultimately charge-sheet was submitted against both the accused, i.e., present appellant as well as the acquitted accused Banita Digal.
4. On the strength of the charge-sheet G. R. Case No. 438 of 2006, State Vs. Bibachha Digal and another, was registered in the Court of SDJM, Phulbani, which in due course, after observing committal formalities, was sent up for trial before the Sessions Court where it was registered as S.T. No 52 of 2007, State Vs. Bibachha Digal and another.
5. Sessions Judge, Phulbani charged both the accused with offences U/Ss. 302/34 and 201/34 of IPC on 07.11.2007 8 and since both the accused denied the charges pleaded innocence and claimed to be tried that their trial commenced.
6. To unfold its story before learned trial judge, prosecution tendered in all eleven witnesses, out of whom informant Kastha Behera/PW1, Ponia Naik/PW-2, Namita Behera/PW3, Bipra Charana Behera/PW8, Niroda Behera/ PW9, Rajesh Behera/PW10 and Smt. Laxmi Digal/PW11, who is the sister-in-law of the appellant, are the fact witnesses. Lankeswar Mallik/PW5 is a resident of the village of the appellant and a grocery-shop and rice huller owner. I.O. of the case Rajendranath Reddy is PW6, whereas Madhusudan Behera, scribe of the FIR is PW7. Prosecution also tendered thirteen documentary evidences before the learned trial Judge.
7. Accused-appellant in his defence did not examine any witnesses nor exhibited any document.
8. As noted in the opening Paragraph, learned trial judge relied upon the prosecution evidences qua the present appellant and held him guilty for the framed charges and resultantly convicted and sentenced him as already mentioned hereinabove. However, he concluded that the prosecution has miserably failed to establish the charges against Banita Digal, the second wife and co-accused, and therefore returned a verdict of acquittal qua her. Challenge in this appeal by the 9 convicted accused appellant is to the aforesaid judgment and order dated 11.08.2008.
9. We have heard Shri Pulakesh Mohanty, learned counsel for the appellant in support of the appeal and Shri L. Samantary, learned Standing Counsel for the State and have searchingly and critically carded out the trial court record and the evidences.
10. Castigating and inhibiting impugned judgment and order, it is incisively asserted by appellant's counsel that there is no eye-witnesses account about the incident that the deceased being a trollop and licentious lady had left appellant's house on her own volition and somebody had committed her murder and the appellant has been falsely implicated in a concocted case. There is no ring of truth in the prosecution story which is a figment of fabricated myth. No blood stained marks was detected by SFSL, Rasulgarh on any of the recovered attires nor on spade nixing prosecution story. It is further submitted that the bones alleged to have been recovered from the spot never belong to the deceased and it has been planted. It is next harangued that no confessional statement was made by the accused-appellant and the same is a figment of I.O.s imagination. Medical report does not concur prosecution version and a false case has been foisted against the appellant because 10 of the suspicion and the ill feeling harboured by the prosecution witnesses. Inconsistencies, incongruities and unconformable testimonies baulk the prosecution story of it's truthful veracity and because of that depositions by the witnesses, being inconsistent, incongruent are unworthy of credence. No reliance can be placed on the same to hold the appellant guilty sputtered learned counsel. Investigation is sloppy, sluggish, perfunctory and is a total remiss. It was, therefore, urged that the appeal of the appellant be allowed and he be acquitted of the charges and be set at liberty.
11. Submitting otherwise and arguing to conversely, learned Standing counsel urged that the deceased was the wife of the appellant and if she had eloped, no attempt was made by the appellant to search her, which is indicative of the fact that it was the appellant, who had committed her murder. No motive can be imputed to the I.O. and to the closest relatives of the deceased to foist a false case against the appellant. Deceased was left at the house of the appellant and therefore it is imperative for him to explain as to what had happened to her. Scientific examination report indicates that recovered skull was that of the deceased. Second marriage by the appellant with the acquitted accused and deceased being a stumbling block in his bigamous marriage, had afforded convincing reason and 11 motive to the appellant extricate his difficulties by annihilating the deceased. Since the dead body was exhumed after many days of the murder, the bones were tried to be identified as that of the deceased. Report from Scientific Officer indicates that the same belong to the human skull. Learned Standing Counsel, therefore, urged that the crime against appellant has been proved to the hilt and he deserves to be convicted and there is no reason to absolve the appellant of the crime committed by him.
12. We have pondered over rival submissions in the light of the evidences existing on the record. From the examination of the testimonies of the witnesses it transpires that so far as the relationships inter-se between the parties are concerned no challenge at all has been made by the accused to doubt them and therefore, the aforementioned relationships stands proved convincingly. It also emerges that there was some feud between the appellant and the deceased, may be because of suspicion on chastity of the deceased or because of the solemnization of bigamous marriage by the appellant and hence it cannot be cogitated even slightly that appellant could not have any motive to commit deceased murder. However the fact remains is that motive howsoever strong cannot establish a crime. Merely because appellant could have motive is scanty 12 and facetious idea to adjudge him guilty. From scanning of record it is apparent that but for imputing motive prosecution has failed to bring convincing evidence on record to connect the appellant with the commission of deceased murder. First of all the attires which were alleged to have been recovered from the spot, were not identified by any of the fact witnesses not even by the father of the deceased nor it were exhibited as material objects. Neither the informant father/PW1, Aunt (Bua/PW2) and the brother PW8 have deposed about the attires belonging to the deceased and thus there is complete absence of convincing evidence that the recovered cloths belonged to the deceased. So is the case regarding the scattered bones, except the skull. Thus, the prosecution has miserably failed to connect the recovered articles with the deceased. Learned trial judge was also very dissatisfied with the brought out evidences as he himself has observed in Paragraphs 10/11 of the impugned judgment that (i) "that dead body of the deceased could not be recovered." (ii) "One saya and the sweater were already near Nala, the theory of digging of hole and recovery does not invoke confidence. Moreover, the skull and other bones of the deceased were found scattered near the Nala. The possibility of the dead body of the deceased being dragged out from inside the burial place and eaten away by the animals is only to be reasonable 13 deducted. Since the skull bone and other bones are lying scattered on the surface. The Blouse, Saya and Sweater which must be closely stuck/tied to the body of the deceased could not have remained inside the earth and the some articles could not have been recovered by digging the earth. When the dead body was dragged out by the wild animals then in natural course the garments which are tied and attached to the body, must come out. Thus the oral evidence of PW-6 and PW-3 in this regard appears to be unnatural and therefore, does not reach a reasonable mind." (iii) "So, recovery of a spade from his possession simplicitor without evidence to connect the spade with the crime cannot be taken as an incriminating circumstance. Neither any blood stain is noticed on the same by the chemical examiner as per his report Ext. 12 nor any witnesses are examined to identify the same as the one use by the accused for digging hole. The possession of a spade by the accused- Bibachha is explainable and there is nothing abnormal as he is a labourer in profession. That being the position the entire prosecution case as regards leading to discovery of the garments and the spade is not proved."
13. However, learned trial judge has observed that so far as absconding is concerned, that is an incriminating material against the appellant. We are unable to subscribe to 14 such type of a reason because there can be other convincing reasons for such a terrified conduct. Absconding may be because of apprehension without being involved in the crime. It is not a circumstance which is complete in itself so as to hold the appellant guilty of the murder. Co-accused Banita Digal having the same allegation on the same evidence has been acquitted. The reasons for her acquittal slated down by the learned trial judge even apply with full force so far as present appellant is concerned. There is no distinction, so far as the evidence is concerned, between the case of the appellant and that of Banita Digal. Learned Trial Judge had tried to carve out an artificial distinction which opinion by the learned trial judge we are unable to subscribe. The President and Secretary of the Nari Sangha could only impute motive to the appellant, but as has been held in a catena of decisions by the Hon'ble Apex Court, motive alone is not sufficient to establish the guilt of the accused. Without being verbose and dragging the issue, we are unable to find out any material against the appellant so as to find him guilty of the crime and confirm his conviction and concur with the findings recorded by the learned trial judge.
14. In essence, we find that the appellant has been wrongly convicted and his appeal deserves to be allowed. 15
15. The appeal is allowed and impugned judgment and order convicting and sentencing the appellant is hereby set- aside and he is acquitted of all the charges. Appellant is confined in jail and therefore he is directed to be set at liberty forthwith unless his presence inside the jail is required in connection with any other crime.
16. Let this judgment be communicated to the learned Trial Judge as well as concerned Jail Superintendent forthwith for their intimation and follow up action.
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Vinod Prasad, J.
K. R. Mohapatra, J. I agree.
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K. R. Mohapatra, J.
Orissa High Court, Cuttack.
The 28th of October, 2016/AKD/AKP