Orissa High Court
State Of Orissa vs M.Sunil Sekhar And on 21 February, 2012
Author: B.K. Patel
Bench: L.Mohapatra, B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
DSREF No. 2 OF 2011
AND
CRLA No.575 of 2011 and CRLA No.617 of 2011
From the judgment and order dated 19.8.2011 passed by Shri
G.K.Mishra, Additional Sessions Judge, Nabarangpur in C.T. No.56 of
2006 committed by the S.D.J.M., Nabarangpur in G.R.Case No.329 of
2005 arising out of Nabarangpur P.S.Case No.109 of 2006.
In DSREF No.2 of 2011
State of Orissa ....... Appellant
-vs-
M.Sunil Sekhar and
M.Rupabati ....... Respondents
For appellant : Mr.B.P.Pradhan,
Addl. Govt. Advocate.
For respondents: M/s. D.C.Dhal, P.R.Nayak,
L.K.Panda, D.P.Pradhan,
S.N.Biswal, and P.K.Mishra.
Sangam Kumar Sahoo
--------
M.Sunil Sekhar (in CRLA No. 575 of 2011)
M.Rupabati (in CRLA No.617 of 2011)
.......... Appellants
-vs-
State of Orissa ( in both the appeals) .......... Respondent
For Appellants : M/s. D.C.Dhal, P.R.Nayak,
L.K.Panda, D.P.Pradhan,
S.N.Biswal, and P.K.Mishra.
Sangam Kumar Sahoo
For Respondent : Mr.B.P.Pradhan,
Addl. Govt. Advocate.
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PRESENT:
THE HONOURABLE SHRI JUSTICE L.MOHAPATRA
AND
THE HONOURABLE SHRI JUSTICE B.K.PATEL
----------------------------------------------------------------------------------------
Date of hearing- 1.2.2012 :: Date of judgment- 21.2.2012
----------------------------------------------------------------------------------------
B.K. PATEL, J.The death reference and the two appeals arise out of judgment and order dated 19.8.2011 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. No.56 of 2006 by which appellant M.Sunil Sekhar (for short 'Sunil') in CRLA No. 575 of 2011 has been convicted under Sections 302 and 201 of the Indian Penal Code (for short 'the I.P.C.') whereas appellant M.Rupabati ( for short 'Rupabati') in CRLA No. 617 of 2011 has been convicted under Sections 302 read with 34 of the I.P.C and Section 201 of the I.P.C. Appellant Sunil has been sentenced to death and to pay a fine of Rs.2,000/- whereas appellant Rupabati has been sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/-, in default, to undergo R.I. for two years under Section 302 of the I.P.C. Also each of the appellants has been sentenced to undergo R.I. for a period of five years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for a further period of six months, under Section 201 of the I.P.C.
2. Appellant Rupabati is deceased's wife. Appellant Sunil is their son. P.Ws. 5, 7 and 10 are their daughters. P.Ws. 4 and 8 are their sons- in-law being husbands of P.Ws. 5 and 10 respectively. P.W.2 as well as D.Ws. 1 and 5 are deceased's brothers.
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3. Prosecution case is that after alienating his old house to P.W. 6, the deceased was constructing a new house at Tota Sahi, Nabarangpur, and was residing with the appellants in a temporary shed constructed there. Deceased and appellant Rupabati had three daughters who were already married. The occurrence took place in the night of 24/25.7.2005 in the said temporary shed. It is alleged that the deceased was not seen after the night of occurrence. On 30.7.2005 P.W.4 lodged a missing report Ext. 9 before P.W. 17, the IIC of Nabarangpur Police Station alleging that some foul play was suspected. It was alleged in the missing report that though appellant Rupabati gave out that the deceased had been to Visakhapatnam for his treatment, nothing was heard from him. It was also alleged that P.W.4 suspected that the dead body of the deceased had been buried inside the newly constructed house. On receipt of the missing report, Station Diary Entry was made and P.W. 17 conducted enquiry with the help of Scientific Officer and police dog of D.F.S.L., Koraput in course of which blood stain was noticed in the first room of the temporary shed. As appellant-condemned prisoner Sunil was not available since 30.7.2005 and reported to be working at Hyderabad, a police team was sent to trace him out. On 25.8.2005 in the morning, on receipt of reliable information, the septic latrine located inside the temporary shed was broken and several pieces of dead body of the deceased were recovered by P.W.17 in presence of Executive Magistrate and others. Consequent upon recovery of the dead body, on 25.8.2005 P.W. 17 drew up FIR Ext. 20, registered the case and took up investigation. On completion of investigation, charge sheet for commission 4 of offences under Sections 302/201/34 of the I.P.C. was submitted against the appellants.
4. Appellants took the plea of denial.
5. In order to substantiate the charge, prosecution examined seventeen witnesses. None of them is an eye-witness. P.Ws. 4, 5, 7, 8 and 10 who are the daughters and sons-in-law of the deceased and appellant Rupabati, deposed regarding 'extra judicial confession' made by appellant Rupabati. P.W. 4 had lodged missing report on 25.7.2005. P.Ws. 4 and 8 deposed also regarding recovery of weapon of offence M.O.II, an iron rod at the instance of appellant Rupabati. That apart P.Ws. 4, 5 and 8 also stated regarding absconding of appellant Sunil since 30.7.2005. P.Ws. 1 and 9 deposed regarding lack of cordial relationship between the deceased and appellant Rupabati. P.W.9 further deposed regarding missing of the deceased since 25.7.2005. P.W.2 is deceased's younger brother who stated about missing of the deceased after 24.7.2005. He was a witness to inquest and seizure of certain articles. P.W. 3 is a witness to recovery and seizure of hexa blade M.O.I at the instance of appellant Sunil. P.W.6 stated that the deceased had shifted to newly constructed house at Tota Sahi after selling his old house to him. P.Ws. 11 and 12 are Assistant Sub-Inspectors of Police who assisted in investigation and were witnesses to certain seizures. P.W.13 is an Executive Magistrate in whose presence dead body was recovered. P.W. 15 is the doctor who conducted post mortem examination over the dead body of the deceased. P.W.14, another doctor, proved P.W. 15's writing and signature in the post mortem 5 examination report. P.W. 16 did not support the prosecution case and was declared to be a hostile witness. P.W. 17 is the informant and the investigating officer in the case. Prosecution also relied upon documents marked Exts. 1 to 31 and material objects M.Os. I and II.
Six witnesses, D.Ws. 1 to 6, were examined and documents marked Exts. A to D were relied upon by the defence.
6. On appraisal of evidence on record, trial court held the appellants guilty of the charge on the basis of circumstantial evidence. Circumstances held to have been established by the prosecution are as follows:
(i) Appellant Rupabati made extra judicial confession implicating the appellant Sunil with the commission of murder of deceased, pointed out the place where the dead body was buried and also led to the recovery of weapon of offence iron rod M.O.II. ;
(ii) Appellant Sunil while in police custody made disclosure statement and led to the recovery of hexa blade M.O.I by which the dead body was cut into pieces;
(iv) Appellant Sunil absconded while accompanying P.W. 4 and others to the police station for lodging the missing report on 30.7.2005 and was not found till 21.2.2006 when he surrendered in court;
(v) The deceased was living with the appellants in the spot house when the occurrence took place;
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(vi) There was no good relationship between the deceased and appellant Rupabati;
(vii) The deceased was found missing after 24.7.2005; and
(viii) Death of the deceased was homicidal in nature due to fatal injuries which could have been caused by iron rod M.O.II and the dead body could have been cut into pieces by hexa blade M.O.I.
7. In launching a scathing attack on the impugned judgment it was vehemently contended by the learned counsel for the appellants that the entire judgment is based on surmises and conjectures without any legal proof to sustain the finding that the appellants are guilty of the charge. It was submitted that much reliance has been placed on the alleged extrajudicial confessions made by the two appellants. So far as the allegation of confession on the part of appellant Rupabati is concerned, statement alleged to have been made by her neither amounts to confession nor can it be held that any such statement was made by her in view of nature of evidence adduced by the prosecution. Materials on record indicate that severed pieces of dead body of the deceased was not recovered from the septic tank on the basis of statement of or at the instance of appellant Rupabati. Upon making references to oral evidence of witnesses as well as contents of F.I.R. Ext.20, inquest reports Exts. 1 to 6 and dead body challan Ext.25, it was argued that the prosecution allegation to the effect that severed pieces of dead body of the deceased was recovered consequent upon information received from appellant 7 Rupabati is not acceptable. It was further argued that no part of the statement alleged to have been made by appellant Rupabati incriminates her. Therefore, her statement does not amount to a confession and is exculpatory. Also, evidence of witnesses with regard to statement made by appellant Rupabati is inconsistent. It was also argued that confessional and disclosure statements leading to recovery of hexa blade M.O.I alleged to have been made by appellant Sunil has not been proved at all. Evidence of seizure witness P.W.3 negates prosecution allegation regarding appellant Sunil to have been made any such statement. That apart, not only iron rod M.O.II was found to be not stained with blood but also hexa blade M.O.I was not sent for chemical examination. Therefore, seizure of M.Os. I and II do not constitute incriminating circumstances against any of the appellants. It was further contended that so far as appellant Rupabati is concerned, there is absolutely no allegation against her to have participated in commission of the crime in any manner. It was also contended that the occurrence is alleged to have occurred in the night of 24/25.7.2005, and it is not disputed that appellant Sunil was very much present till 30.7.2005. Evidence of P.Ws. 4 and 8 that appellant absconded on 30.7.2005 when they were going to the police station is an afterthought and development of prosecution case in course of trial. Upon reference to evidence of the witnesses it was further argued that witnesses have made contradictory statements regarding the place where the accused persons and the deceased resided prior to the occurrence. Moreover, P.W.2 categorically stated that during the period of occurrence they were residing in village Narigaon and not at 8 Nabarangpur. Moreover, prosecution has not led any evidence to conclusively hold that deceased was not seen after the occurrence night. Learned counsel for the appellants also contended that prosecution has failed to prove any evidence regarding motive for commission of the offence which is very vital in a case based on circumstantial evidence. Vague allegation that there was no cordial conjugal relationship between appellant Rupabati and the deceased cannot form basis of any inference when no allegation has been made against appellant Rupabati to have participated in commission of the crime. There is no allegation of any motive on the part of appellant Sunil for commission of offence. Having assailed findings of the trial court on each of the circumstances stated to have been established, it was contended by the learned counsel for the appellants that homicidal death of the deceased by itself, in absence of any other circumstances, cannot constitute basis to sustain conviction of any of the appellants. Learned counsel for the appellants placed reliance on a number of judicial pronouncements in support of his argument.
8. Learned counsel for the State contended that trial court's findings and conclusion are based on analysis of evidence on record. Such findings have been recorded mainly on the basis of evidence of appellant Rupabati and deceased's daughters and sons-in-law who are also sisters and brothers in-law of appellant Sunil who have no motive to falsely implicate the appellants. Therefore, the impugned judgment warrants no inference. In defending the sentence of death awarded to appellant Sunil it was contended by learned counsel for the State that 9 murder of the deceased was committed by him in a cold blood, brutal, grotesque, diabolic, revolting or dastardly manner. Without remorse or repentance, dead body was severed into pieces and concealed inside the septic tank. In such circumstances, death sentence has rightly been awarded on appellant Sunil.
9. This is a case based on circumstantial evidence. In a case where the evidence is of circumstantial in nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and also facts so established should be consistent only with the hypothesis of the guilt of the accused. Following five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. The accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions;
(2) the acts 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 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with 10 the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In this context reliance is placed on the decision of the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra:
AIR 1984 SC 1622.
10. In the present case, prosecution has placed much reliance on the circumstances of alleged extrajudicial confessions made by both the appellants resulting in discovery of dead body as well as hexa blade M.O.I. and iron rod M.O.II.
11. With regard to alleged confession made by appellant Rupabati, it was strenuously contended that neither the alleged statement made by her amounts to a confession nor has the prosecution cogently established that she made any such statement.
12. It is alleged that appellant Rupabati made extrajudicial confession before her daughters P.Ws. 5, 7 and 10 and sons-in-law P.Ws. 4 and 8. P.W. 4 deposed that on 25.8.2005 P.W. 7 intimated her over phone that appellant Rupabati was telling them that while her father was pushing her down on 24.8.2005 in the night, appellant Sunil suddenly dealt a blow on the head of the deceased by means of iron rod M.O.II as a result of which the deceased died. On getting information from P.W. 7, P.W. 4 along with others came to Nabarangpur and on being asked by them, appellant Rupabati told the same thing as informed by P.W. 7 to the effect that appellant Sunil dealt a blow by means of an iron rod on the head as a result of which deceased died instantaneously at the spot. 11 Thereupon, appellant Rupabati was taken to the police station where she confessed before the police regarding the guilt of appellant Sunil to have killed his father. She also confessed that after the death of the deceased dead body was cut into pieces and put into the latrine tank being wrapped with a concrete cover inside the back side courtyard of the house. Thereafter, appellant Rupabati led them and police to the newly constructed house located at Tota sahi and gave recovery of the iron rod and pointed out the place where the dead body was kept concealed inside the latrine tank. Thus, appellant Rupabati is stated to have first confessed before P.W. 7. P.W. 7 testified that on 25.8.2005 appellant Rupabati told her not to waste time for searching after the deceased and also told that during the quarrel, ensued between herself and the deceased, appellant Sunil dealt a blow by means of an iron rod as a result of which the deceased died and his dead body was kept concealed in the latrine tank. P.W. 7 immediately sent information to P.W. 4 about the matter. P.W. 5 deposed that she came to know regarding statement made by appellant Rupabati implicating appellant Sunil with commission of the offence from P.W. 7. She further stated that after such news being received, deceased's daughters and their husbands went to the house and asked the matter to appellant Rupabati who told the same thing as stated by P.W. 7. P.W. 8 stated to have learnt from P.W. 4 that appellant Rupabati confessed that appellant Sunil suddenly dealt a blow by means of an iron rod on the head causing death and put the dead body inside the latrine tank. Then all of them went to Nabarangpur and asked appellant Rupabati about the incident. She confessed before them that in 12 course of quarrel between her and her husband, appellant Sunil dealt a blow by means of an iron rod on the head causing his death. Thereafter, they brought appellant Rupabati to the police station. In course of interrogation by the police, she confessed the same thing about the deceased being killed by appellant Sunil. The police reduced the statement into writing. P.W.8 also testified that appellant Rupabati made a disclosure statement before the police that she would show the weapon of offence concealed in the place and also led them and the police to the spot and gave recovery of an iron rod. P.W.10 testified that on 25.8.2005, while she was in the occurrence house, her mother appellant Rupabati told that while she was involved in quarrel with the deceased, appellant suddenly by means of an iron rod dealt a blow on his head causing his death in the night of 24.7.2005. In her cross-examination P.W.10 deposed that on that day her sisters and brothers-in-law went to the police station along with appellant Rupabati. Thus, none of the witnesses stated that appellant Rupabati made any confession implicating herself with the commission of offence.
13. In Gunanidhi Maharana -v- State : (1993) 6 OCR 158 it has been held by this Court that before statement of an accused is made to operate against the co-accused with the aid of Section 30 of the Evidence Act, what must be before the Court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. To attract the provisions of Sec.30 it should for all purposes be a confession, that is a statement containing an admission of guilt and not 13 merely a statement raising the inference with regard to such a guilt. It is only when a person admits guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt there is a guarantee for his truth, and the Legislature provides that his statement may be considered against his fellow accused charged with the same crime. In the present case, appellant Rupabati has not implicated herself to have participated in the commission of any offence in any manner. Therefore, the alleged statement made by appellant Rupabati does not amount to confession.
14. From the evidence of P.Ws. 4, 5, 7, 8 and 10, it is clear that all of them were aware regarding concealment of the severed parts of the dead body inside the septic tank before they took appellant Rupabati to the police station on 25.8.2005. In the F.I.R. Ext. 20 drawn up and registered by P.W. 7 on 25.8.2005, there is no whisper that dead body of the deceased was recovered consequent upon information derived from appellant Rupabati. It has simply been alleged that on 25.8.2005 morning after getting reliable information the concrete inside the septic tank of newly under construction house of deceased was broken open in presence of the Executive Magistrate and others, and dead body was recovered inside a gunny bag having injuries on the head. Besides two legs, two hands and head had been cut into pieces having sharp cutting injuries. From the F.I.R. it appears that appellants were cited as accused persons solely on the basis of suspicion as, according to the informant, there was no other inside the house along with the deceased. Soon after the recovery of the dead body, the same was subjected to inquest and dead 14 body challan was prepared for subjecting the dead body for post mortem examination. Neither in any of the six inquest reports nor in the dead body challan there is any mention regarding alleged statement made by appellant Rupabati. Neither of the appellants has been described to be a suspect or an accused either in the inquest reports Exts. 1 to 6 or in the dead body challan Ext. 25. In such circumstances, the contentions of the learned counsel for the appellants that till preparation of the dead body challan, there was no suspicion against any of the appellants and that F.I.R. Ext. 20 was prepared after preparation of dead body challan do not appear to be unfounded.
15. No doubt in the inquest report simply opinion of the witness as to the cause of death is required to be mentioned because the purpose of inquest report is only to ascertain cause of death. However, inconsistency between the contents of the inquest report and allegations made against accused persons cannot be brushed aside while appreciating veracity of the allegations. Reference in support of such principle may be made to the decision of Jaharlal Das -v- State of Orissa : AIR 1991 SC 1388, wherein discrepancy between the contents of the inquest report and allegations made against accused led the Supreme Court to hold that it is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused. In the present case, it is alleged that consequent upon information derived from the statement of appellant Rupabati dead body of the deceased was recovered from the septic tank. Admittedly, FIR Ext.20 was prepared after recovery of the dead body. Thereafter only, inquest reports and dead body 15 challan were prepared. In the F.I.R. there is no indication that dead body of the deceased was recovered on the basis of information received from the appellant Rupabati. So also inquest reports Exts.1 to 6 are silent regarding role of any of the appellants. It is pertinent to observe that in the dead body Challan the investigating officer is required to fill up information under the heading, "Full history of the case so far as is at present known, is as follows". In the present case not only in F.I.R. Ext. 20 but also in the dead body challan Ext.25, it has simply been written by the I.O. that dead body was recovered from the septic latrine on the basis of reliable information.
16. In view of the circumstances narrated above, the very assertion made by the prosecution that appellant Rupabati made statement resulting in discovery of dead body of the deceased and iron rod M.O.II becomes doubtful. In the context of recovery of hexa blade M.O.I and iron rod M.O.II, it may also be stated that neither of it by itself is an incriminating object or circumstance. Upon chemical examination report, no blood stain was detected on alleged weapon of offence iron rod M.O.II. Hexa blade M.O.I was not sent for chemical examination. In SK. Yusuf - v- State of West Bengal : (2011) 11 SCC 754, it has been held that no inference can be drawn against the accused if there is no evidence connecting the weapon with the crime alleged to have been committed by him. It has been held:
"The nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence Act,1872 is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a 16 result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused.
Be that as it may, the spade had not been sent for chemical analysis as admitted by Digambar Mondal (PW 19), IO himself and there was no explanation furnished as for what reason it was not sent. In case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable.(Vide Akhilesh Hajam -v. State of Bihar: 1995 SCC (Cri) 883)".
In another decision of the Supreme Court in Akhilesh Hajam
-vrs.- State of Bihar : 1995 SCC (Cri) 883 it has been observed and held:
"11. As regards the seizure of bloodstained iron angle on the basis of disclosure statement said to have been made by the appellant the same is also not free from doubt. According to the prosecution the appellant made the disclosure statement that he had kept the iron angle in the room concealed beneath the fuel wood which was used as a weapon of offence but according to the statement of PW 6 the witness of disclosure and seizure of the alleged iron angle the same was not found concealed beneath the fuel wood in the room but the iron angle was found in the verandah which is an open and accessible place. Such a seizure from an open and accessible place can hardly be said to be a recovery on the basis of disclosure statement. It is therefore difficult to accept that the seizure of iron angle was on the basis of the disclosure statement made by the appellant. Even if the iron angle would have been recovered from a concealed place then also on the basis of this circumstance of recovery alone, in the absence of any report of Serologist as to the presence of human blood on the same the conviction of the appellant could not be founded. xx xx xx"
17. There is another reason which makes the prosecution assertion of appellant Rupabati to have made any statement vulnerable. As has been observed above P.Ws.4,5,7,8 and 10 stated that appellant Sunil dealt one blow on the deceased's head as a result of which he 17 sustained fatal injury and died. Medical evidence available from P.W.15 is not consistent with the alleged version of appellant Rupabati. According to P.W.15, he found deep penetrating injury over the upper eyelid, incised wound over the left side of forehead, another wound with irregular margin over the coronal suture in midline of skull and two parallel split would of skull over the right ear. P.W.15 categorically opined that the deceased had been dealt with severe deadly blows to his forehead and entire skull five times which could have led to his immediate death. After death or complete cessation of consciousness when the deceased was completely paralyzed he had been cut into seven pieces by sharp cutting weapon by a person probably having skills of a butcher. In such circumstances the statement alleged to have been made by appellant Rupabati with regard to the manner of assault by appellant Sunil also does not appear to be true.
18. It is also observed that not only P.Ws.5,7 and 10 but also P.Ws. 2,4,6 and 13, who asserted that they were present at the time of recovery of dead body from the septic tank, did not depose that dead body was recovered at the instance of appellant Rupabati. Exts.26 and 31 are disclosure statements of appellant Rupabati and Sunil respectively recorded by P.W.17. In neither of the documents either any of the appellants or any of the witnesses has appended signature. In Ext.26 there is no indication that deceased's dead body was cut into pieces before the same was kept inside the latrine. It has been elicited in P.W.5's cross-examination that she had not seen the iron rod M.O.II. Similarly also, it has been elicited in course of cross-examination of P.W.7 that appellant Rupabati did not show the iron rod by which the deceased was 18 killed. P.W.10 stated in her cross-examination that on 25.8.2005 she did not see the iron rod. These circumstances also create doubt regarding veracity of allegation regarding making of statement/confession by any of the appellants.
19. P.W.3 stated to have witnessed seizure of hexa blade M.O.I. He stated that appellant Sunil made disclosure statement, led him and others including police to the place of concealment, i.e. newly constructed house, dug the place and gave recovery of hexa blade M.O.I. In his cross- examination this witness stated that seizure list Ext.8 was prepared at the police station and that he was not present at the time when statement of appellant Sunil was recorded. He could not say if statement of appellant Sunil was recorded by police and also regarding conversion between the appellant Sunil and police. As against evidence of P.W.3 that it was the appellant Sunil who dug out and brought hexa blade M.O.I from the earth, Investigating Officer P.W.17 stated that appellant Sunil simply led to the spot and showed the place of concealment from where P.W.17 recovered the hexa blade M.O.I.
20. Absconding of an accused is a weak link to establish culpability in a case based on circumstantial evidence. In SK. Yusuf -v- State of West Bengal (supra) it has been held by the Supreme Court :
" It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment.( Vide Matru v.State of U.P.:AIR 1971 SC 1050; Paramjeet Singh v. State of Uttarakh:
AIR 2011 SC 200 and Dara Singh v. Republic of India: (2011) 19 2 SCC 490). Thus, in view of the law referred to hereinabove, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him."
Also, upon reference to a plethora of decisions of the Supreme Court, this Court in Dasu alias Jashoda Dei -vrs.- State : 59 (1985) CLT 331 has held:
"12. xx xx xx xx Absconding, by itself, is not conclusive of the guilt or of a guilty conscience. A person may abscond on account of fear of being falsely involved in the offence or for any other allied reason. Mere absconding may land some weight to the other evidence establishing the guilt of the accused, but, by itself, is hardly any evidence of guilt. The conduct of one making oneself scarce for some days is relevant under section 8 of the Evidence Act and might be indicative to some extent of a guilty mind, but this is not the only conclusion to which it must lead the court. Even an innocent person may, when suspected of grave crimes, be tempted to evade arrest and such is the instinct of self-preservation in an average human being. Absconding is a weak link in the chain of circumstances as even an innocent person may try to keep out of the way on learning about false implication in a serious crime reported to the police. xx xx xx xx".
21. P.Ws. 4 and 8 alleged that appellant Sunil joined them to lodge missing report on 30.7.2005 but absconded on the way to police station. Ext.9, the missing report dated 30.7.2005 is, however, altogether silent regarding absconding of appellant Sunil. It has also been elicited in evidence that neither P.W.4 nor P.W.8 had stated before the Investigating Officer P.W.17 that appellant Sunil absconded since 30.7.2005. Allegation of absconding against appellant Sunil is rendered unacceptable in view of P.W.2's evidence in course of cross-examination that on 30.7.2005 appellant Sunil went to Visakhapatnam to search after his father. 20
22. Another vital circumstance marshaled against the appellants is that they were residing together with the deceased in the spot house and were last seen in the company of deceased. In this context, reliance was placed on the evidence of P.Ws.1,6 and 9. P.W.1 happens to be a priest. He stated that previously the deceased was staying with the appellants in their house situated near P.W.1's house. Subsequently, they stayed in a newly constructed house which is at a distance of half k.m. from his house. In cross-examination P.W.1 stated that the deceased sold the old house when construction of new house started. He had been invited to perform opening puja after which he did not visit the new house and he cannot say who were staying in the newly constructed house. It has been elicited in P.W.1's cross-examination that appellant Sunil was staying at Hyderabad. P.W.6 stated that while construction of new house was going on, deceased shifted to the newly constructed house and stayed there with the family members. P.W.9 claimed to be a close friend of the deceased. He stated that deceased shifted to Tota sahi by making a new house in the last part of 2004. He along with his wife and son were residing in the shed adjoining the newly constructed house at Tota sahi. Thus, evidence of P.Ws. 6 and 9 is vague to conclude that the deceased was residing with and last seen in the company of the appellants till the night of 24/25.7.2005 in the spot house at Tota sahi. On the other hand, P.W.2 who happens to be the deceased's brother in course of cross-examination stated that after the marriage of his youngest daughter, deceased went to his original village Narigaon and stayed there with his wife and son. The new house at Nabarangpur was under 21
construction. The deceased was looking after the progress of construction work and used to return to his parental house. On 24.7.2005 the deceased came to Nabarangpur to look after the construction work. By that time his son and wife were staying at Narigaon. Nobody was staying in the newly constructed house after 24th July and the deceased did knot return to Narigaon. Thus, evidence of P.W.2 in course of cross-
examination falsifies the prosecution assertion that the appellants were residing with the deceased in the spot house. Prosecution has failed to establish the circumstance so as to constitute a link in the chain of circumstance.
23. Prosecution having failed to establish that the deceased was last residing and seen together with the two appellants in the occurrence house, decisions of the Supreme Court in State of A.P. -vrs.- Gangula Satya Murthy : (1997) 1 SCC 272 and in State of Rajastan -vrs.- Kashi Ram : (2006)12 SCC 254, and of this Court in Santosh Kumar Patro & Ors. -vrs.- State of Orissa : (2010) 45 OCR 31, laying down the implications of such circumstances and relied upon by the learned counsel for the State, have no application to the facts of the present case.
24. Prosecution relied upon the circumstance of absence of good relationship between the deceased and the appellant Rupabati to be the motive for commission of offence. Evidence of P.Ws. 1 and 9 was relied upon in this context. P.W.1 had his house adjoining deceased's old house. He testified that when the deceased was residing in the old house, there was no good relationship between the deceased and 22 appellant Rupabati. Sometimes the deceased was assaulting her. In cross-examination P.W.1 stated that he had frequent talk with appellant Rupabati. There was lack of understanding between her and the deceased. It is also in P.W.1's cross-examination that P.W.1 had not visited the new house under construction after performing opening puja. It has also been elicited in his evidence that he had not seen any assault by the deceased on appellant Rupabati. P.W.9 made a vague allegation that there was no cordial relationship between the deceased and his wife. Even if evidence of P.W.1 and 9 with regard to lack of cordial or good relationship between the deceased and appellant Rupabati is believed, admittedly they were residing together. Existence of certain conjugal differences or dispute by itself cannot constitute motive which may lead to adverse inference in support of the prosecution case that appellants committed murder of the deceased in furtherance of their common intention. Moreover, there is nothing in the evidence of deceased's daughters and sons in-laws P.Ws.4,5,7,8 and 10 to indicate that there was bitter relationship between the deceased and the appellants. In fact they were the best persons to depose the nature of relationship between the deceased on the one hand and the appellants on other. Therefore, it is found that prosecution has miserably failed to establish motive on the part of the appellants to do away life of the deceased.
25. Even if medical evidence has been adduced to establish that death of the deceased was homicidal in nature and that dead body of the deceased was cut to pieces, such circumstance as well as circumstance of 23 deceased missing after 24.7.2005 do not in any manner help the prosecution in showing complicity of any of the appellants with the offences under which the appellants stood charged. In fact, as has been discussed above, there is absolutely no allegation against appellant Rupabati to have in any manner participated in commission of the crime. Circumstances relied upon by the prosecution to implicate appellant Sunil with commission of the offence falls far short of proof so as to be fully established for which we are unable to hold that there exists any chain evidence which conclusively and unerringly point out at the guilt of any of the two appellants. Therefore, the impugned judgment and order is not sustainable. Appellants are liable to be acquitted.
26. In the result, both the criminal appeals are allowed. The judgment and order dated 19.8.2011 passed by the Additional Sessions Judge, Nabarangpur in C.T. No.56 of 2006 are set aside. Appellants are acquitted of the charge. They be set at liberty forthwith unless their detention is required in any other case.
DSREF No.2 of 2011 is answered accordingly.
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B.K. Patel, J.
L.Mohapatra,J I agree.
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L. Mohapatra, J.
Orissa High Court, Cuttack,
24
The 21st Feb,2012/Aswini