ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 101 of 2005 From the judgment and order of sentence dated 18.04.2005 and 20.04.2005 respectively passed by Sri S.K. Pattnaik, learned Addl. Sessions Judge, Titilagarh in Sessions Case No.114/37 of 2003, under Section 302, I.P.C. ---------- Sri Dillip Kumbhar … Appellant Versus State of Orissa … Respondent For Appellant : Miss Deepali Mohapatra, Advocate. For Respondent : Addl. Govt. Advocate. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Hearing : 18.11.2010 Date of Judgment : 18.11.2010 --------------------------------------------------------------------------------------------------- 1. The trial court found the appellant guilty of the offence of uxoricide, convicted him under Section 302, I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.5,000/- (five thousand), in default, to suffer R.I. for six months more. The said judgment dated 18.04.2005 and order of sentence dated 20.04.2005 passed by learned Addl. Sessions Judge, Titilagarh in Sessions Case No. 114/37 of 2003 are impugned in this appeal. 2. The occurrence happened at about 5.30 p.m. on 08.04.2003 at Sunari jungle near Rengali situated under Saintala P.S. in the district of Bolangir. The appellant is a resident of village Talapadar. The village of the deceased is Ichhapada. Marriage between the deceased and the appellant was solemnized on 11.03.2003. On 08.04.2003 the appellant is alleged to have arranged a phone call to the telephone of his co-villager Bishnu Prasad Meher (P.W.15) to reach a false message to his deceased wife to the effect that her father was ill. On the same day, on the pretext of taking his wife to see her ailing father, the appellant at about 5.30 p.m. left his village Talapadar along with his wife. They proceeded to Ichhapada on a bicycle through Sunari jungle. On their way to Ichhapada, the appellant persuaded his wife to give her ornaments to him, feigning apprehension of their being robbed on the way through the jungle. While passing through the jungle, the appellant is alleged to have murdered his wife by assaulting her with a knife and a stone. After committing murder, the appellant concealed the weapons of offence at a little distance from the spot and proceeded to the nearby village Rengali. There at Rengali he informed some of the villagers that some unknown culprits robbed the gold ornaments from the person of his wife and committed her murder inside Sunari jungle. Same facts the appellant intimated to his father-in-law from the telephone of Mahadev Sahu (P.W.18) of Rengali. Getting such message, appellant’s father-in-law (P.W.1), brother-in-law (P.W.2) along with their co-villagers P.Ws.3, 4, 9 and 11 came to Rengali. The appellant 2 took them from village Rengali to the spot, where the deceased Alaka was found lying dead in a pool of blood. Suspecting some foul play, P.W.1, the father of the deceased, lodged report at the police station. On the basis of the report, the case was registered, and after completion of the investigation, charge-sheet was filed against the appellant implicating him in the offence punishable under Section 302, I.P.C. 3. The defence plea is one of complete denial of the charge. The appellant in his statement recorded under Section 313, Cr.P.C. has taken the specific plea that while he and his wife were proceeding to Ichhapada, it was already evening in Sunari jungle; four unknown persons chased them to attack; he and his wife started running, but his wife in her running state fell down, whereas he managed to escape and concealed himself at a safe distance inside the jungle; after about half an hour he heard the cry of his wife and then he came to the spot; he saw his wife lying in a pool of blood; he lifted her body to find that she was already dead and thereafter he came to village Rengali and informed the villagers about the incident. He also informed such facts to his father-in-law and others, as stated by him. 4. Prosecution examined 21 witnesses to prove the charge. P.Ws.1 and 2 are respectively the father and brother of the deceased. P.Ws. 3, 4, 9 and 11 are their co-villagers. P.Ws.7 and 10 are the witnesses to the inquest over the dead body. P.Ws. 6, 7, 8, 18 and 19 are the villagers of Rengali. P.Ws. 12, 13 and 14 are the official witnesses, before whom nail clippings of the appellant were collected and seized. P.W.15 is the co-villager of the appellant. P.W.5 is the 3 Medical Officer, who conducted the post-mortem over the dead body of the deceased and P.W.16 is another Medical Officer, who examined the appellant on police requisition. P.Ws. 17, 20 and 21 are the Investigating Officers of the case. The defence on the other hand has examined none to prove its plea. 5. The case is based entirely on circumstantial evidence. Learned trial court, in reaching the finding of guilt in respect of the appellant, has relied on the following circumstances – (1) There is recovery of the weapon of offence namely the Stone (M.O.-IX) basing upon the disclosure statement of the accused while in police custody and the said Stone on chemical analysis was found to have contained moderate human blood. (2) The wearing pant and shirt of the accused were found to have contained the same group of blood ‘A’ as that of the deceased and the explanation of the accused that due to his lifting of his wife’s body soon after her murder by four hooligans inside the jungle, was found to be wholly unbelievable. (3) The gold ornaments of the deceased were recovered and seized from the possession of the accused soon after the crime of murder, contrary to his plea of those being looted by some ruffians. 4 (4) Various injuries were found on the person of the accused suggesting medically to have been caused during struggle with another person. (5) The explanation given by the accused as regards his own conduct during and subsequent to the incident are wholly abnormal and unusual in running away from the spot leaving the helpless wife in the midst of four ruffians and even thereafter not choosing to escape from the jungle and begging assistance from the persons of nearby village for the rescue of his wife but selecting to conceal about half a kilometer away from the spot for half an hour. If according to him he was actually scared at the sight of the ruffians, he could not have ventured to return to the spot to rescue his wife on hearing her cry from a distance of half a kilometer. (6) The accused created a situation to give impression to his wife that her father was ill through fake phone calls although in fact her father was not ill. (7) The accused had a strong motive to commit the crime of murder suspecting his wife to have illicit relationship with one boy of her village prior to her marriage. 6. Learned counsel for the appellant submits that learned trial court having failed to approach appreciation of the circumstantial evidence in the manner it should have been approached and having misappreciated the evidence on record, conviction of the appellant under Section 302, I.P.C. is not at all sustainable in the eye of law. 5 Learned Addl. Govt. Advocate on the other hand supports the impugned judgment. 7. Hon’ble Supreme Court in the case of M.G. Agarwal and another vrs. State of Maharashtra, A.I.R. 1963 S.C. 200, has held that circumstantial evidence can be reasonably made the basis of an accused person’s conviction, if it is of such a character that it is wholly inconsistent with the innocence of the accused and consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. But, in applying the principle, it is necessary to distinguish between the facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In accordance with proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in appreciation of evidence in respect of proof of those basic or primary facts, there is no scope for application of the doctrine of benefit of doubts. Applying the aforesaid principle, we propose to proceed to find out how far the prosecution has been able to prove the circumstances relied on by the trial court. 8. CIRCUMSTANCE No. (1) : Recovery of the weapons of offence at the instance of the appellant. Learned trial court has relied on the evidence of the I.O. (P.W.21) and the independent witnesses P.Ws.3 and 19, to return the finding that this circumstance has been proved. Learned trial court, however, refused to accept recovery of the knife (M.O.-I) as one 6 under Section 27 of the Evidence Act, as it is the evidence of P.Ws. 1, 3 and some other P.Ws. that they had seen a knife lying near the dead body of the deceased. There is also no stain of blood on that knife (M.O.-I), as found from the chemical examination report (Ext.13). Therefore, the only circumstance that is held to have been proved by the learned trial court is recovery of the stone (M.O.-IX) at the instance of the appellant and seized vide Ext.23. The I.O. (P.W.21) in his evidence has testified that at about 4.45 p.m. on 09.04.2003 he arrested the appellant and after arrest, he (appellant) made the disclosure statement before him and the witnesses and led them to the place of concealment of the stone (M.O.-IX) and gave recovery of the stone, which he seized vide Ext.23. According to him (P.W.21), the place of concealment of the stone (M.O.-IX) is at a distance of 27 feet towards North from the place of recovery of the knife and the same was covered by dry ‘sal’ leaves. To the contrary what P.W.21 has testified, P.W.19 has deposed that at 9 a.m. on 09.04.2003 the appellant, while in police custody, made the disclosure statement and on the basis of such statement the stone (M.O.-IX) and the knife (M.O.-I) were seized. So far as the place of concealment is concerned, P.W.19 has testified that the appellant led them to one ‘Rengal’ tree and got the knife and stone from beneath the ‘Rengal’ tree branches and leaves and gave them to the police, which the police seized. Again he (P.W.19) has testified that the said ‘Rengal’ tree is located at about 15 feet away from the spot, where the dead body of the deceased was lying. In his cross- examination, P.W.19 has testified that all the seizures vide Exts.14, 10, 5, 23 and 11 were made by the police in between 7 a.m. to 10 a.m. 7 on the same day and he (P.W.19) left Sunari jungle for his home at about 11 a.m. P.W.3 has turned hostile and he has given prevaricative testimony so far as the seizure on the basis of the disclosure statement of the appellant is concerned. Learned trial court has relied on heavily on the evidence of P.Ws.21 and 19 to hold this circumstance to have been proved. But from the evidence of P.Ws.21 and 19 discussed supra, it is found that there are contradictions and discrepancies in their evidence so far as the time of disclosure is concerned and so far as the place of concealment of the stone is concerned. Further, the alleged statement of the appellant purported to have been recorded under Section 27 of the Evidence Act has not been proved. Evidence of both P.Ws. 19 and 21 also casts a shadow of doubt as to whether the appellant was, in fact, in custody when he made the alleged disclosure statement. Taking into consideration all such facts and the evidence of P.Ws. 19 and 21 in their entirety, we are of the view that this circumstance cannot be held to have been proved. 9. CIRCUMSTANCE NO. 2 : Presence of blood of the deceased on the pant and shirt of the appellant. The appellant has admitted the circumstance and in his statement recorded under Section 313, Cr.P.C., he has stated that he lifted the body of his wife lying in a pool of blood to find that she was dead. This Circumstance in view of admission of the appellant is held to have been proved. 8 10. CIRCUMSTANCE No. 3 : Seizure of gold ornaments from the possession of the appellant immediately after the occurrence. The gold ornaments identified to be that of the deceased has been seized vide Ext.14. Learned trial court has relied on the evidence of P.Ws.6, 19 and 21 to hold the circumstance to have been proved. P.W.6 has turned hostile. According to him, the seizure list was prepared in presence of the seizure witness and the appellant was not present then. He (P.W.6) in his cross-examination by the Public Prosecutor has testified that the gold ornaments were seized from the pant pocket of the appellant. P.W.19 has testified that the seizure list vide Ext.14 was prepared at about 7 a.m. on 09.04.2003 and the seizure was made vide Ext.14 at the spot. P.W.1 has also testified that the seizures of gold ornaments were made at the spot. According to the I.O. (P.W.21), however, the seizure vide Ext.14 were made at Tikrapada Out-Post and on personal search of the appellant the gold ornaments were seized. There is, therefore, a discrepancy in the evidence of the independent witnesses and the I.O. so far as the place of seizure is concerned. Learned trial court in the evidence of P.W.6 has made the following observation – “The seized ornaments are neither produced before the Judge-in-Charge (Malkhana), as found from the Register (R-27), nor produced in this Court. There is no Zimanama available in the case record.” The prosecution at a later stage produced the gold ornaments, vide M.Os. XVI to XIX, through P.W.19, who is a resident of Rengali and not a co-villager of either the appellant or his father-in-law. Prosecution got the gold ornaments identified by P.W.19, who is a 9 stranger to those ornaments. The prosecution, therefore, seems to have tried to fill up the lacuna while examining P.W.19 in the Court and P.W.19 appears to be a stock witness, otherwise he would not have abided by the design of the prosecution. The gold ornaments alleged to have been seized from the appellant are (i) a gold necklace with locket fitted with a red stone, (ii) two gold chains and (iii) a pair of gold ear-flowers. Taking into consideration the part of the body where the deceased must have worn those gold ornaments, it was obvious that those gold ornaments must have been stained with blood, especially in view of the injuries sustained by the deceased, as deposed to by the Medical Officer, P.W.5. The peculiarity, however, is that the gold ornaments were not sent for chemical examination. The gold ornaments having not been produced before the Court and there being no Zimanama in respect of the gold ornaments on record, there being nothing on record to show that the gold ornaments were sent for chemical examination, there being discrepancy in the evidence of independent witnesses and the I.O. regarding the place and time of the seizure and non-identification of the same by a competent witness, there arise a doubt as to whether any gold ornaments were seized from the possession of the appellant. The further peculiarity of the fact is that the appellant is alleged to have committed the murder of his wife in accordance with a well thought out plan. In that view of the matter, it cannot be believed that the appellant would have kept the gold ornaments in his pocket till its recovery by the police on his personal search. In view of the above, we are constrained to hold that Circumstance No. 3 has not been proved by the prosecution. 10 11. CIRCUMSTANCE No. 4 : Injury found on the person of the appellant. P.W.16 had examined the appellant on police requisition. He noticed certain injuries more fully described in the evidence of P.W.16 and paragraph-16 of the impugned judgment. All the injuries were on the left hand of the appellant. Taking into consideration the opinion of the Medical Officer (P.W.16) to the effect that the injuries were possible in course of a struggle between two persons when one tries to murder the other, learned trial court has held the circumstance to have been proved against the appellant. What the Medical Officer (P.W.16) has testified about the possibility of the injuries on the body of the appellant is only an opinion. Though the appellant in his statement under Section 313, Cr.P.C. is denied to have sustained any injury, in view of the evidence of the Medical Officer (P.W.16), who examined the appellant on police requisition, it is to be held that the appellant had sustained the injuries, as found by P.W.16. We are, therefore, of the view that this Circumstance has been proved to the extent indicated. 12. CIRCUMSTANCE No. 5 : Conduct of the appellant during and subsequent to the incident. The appellant in his statement recorded under Section 313, Cr.P.C. has stated that seeing four hooligans / culprits chasing them, he and his wife started running. While so running, his wife fell down, but he ran away to a safe distance and concealed himself in the jungle. Hearing the cry of his wife he again came to the spot and found his wife lying in a pool of blood. He lifted the body of his wife 11 to find her dead. The conduct of the appellant in leaving his wife at the mercy of four unknown culprits, his running away to a safe distance and concealing himself in spite of the fact that his wife had fallen down while running and returning back again to the spot on hearing the cry of his wife has been held to be unusual and unnatural by the learned trial court. The aforesaid conduct of the appellant being an admitted fact, we are of the view that this circumstance, as relied on by the learned trial court to the extent what the appellant has admitted, is held to be proved. 13. CIRCUMSTANCE No. 6 : Conduct of the appellant in giving impression to his wife through a fake telephone call to the effect that her father is ill. Learned Court below has held the circumstance to have been proved. P.W.15 is the witness to prove such fact. He has, however, been cross-examined by the prosecution under Section 154 of the Evidence Act. P.W.15 in his evidence has testified that on 06.04.2003 at about 11 a.m. he received a telephone call from a girl from Ichhapada, and without disclosing her name she informed that the father-in-law of the appellant is ill and the appellant along with his wife should come to Ichhapada. He did not convey this message to the appellant. Again on 07.04.2003, in the morning hour somebody from Ichhapada introducing himself as elder brother-in-law of the appellant gave the same message. P.W.15 thereafter went to the house of the appellant and conveyed the message to the mother of the appellant. There is no evidence on record to show that the appellant had arranged that phone calls to the house of P.W.15, who had a telephone instrument in his house. From the suggestion of the defence 12 to P.Ws.1 and 2, it is found that the deceased had some affair with a ‘Sundhi’ caste boy named Kishore Behera. P.W.1 has denied such suggestion of the defence, and P.W.2 in his cross-examination has testified that said ‘Sundhi’ caste boy Kishore Behera committed suicide six / seven months after the incident. In view of such fact, it might have so happened that the boy, with whom the deceased is alleged to have affair, had managed to arrange fake telephone calls to bring the deceased out from the safety of her matrimonial home and he along with others might have committed the murder of the deceased while the deceased was going to Ichhapada in the evening. Regard being had to such situation, this circumstance cannot be held to have been proved to the extent the learned trial court has held the same to have been proved, and this circumstance cannot be held to be incriminatory so far as the appellant is concerned, in as much as there is no evidence at all to show that the appellant had arranged those phone calls to the house of P.W.15. 14. CIRCUMSTANCE No. 7 : Motive. The finding of learned Trial Court to hold this circumstance to have been proved, is totally inferential and if the facts relating to the affair of the deceased with the ‘Sundhi’ boy is taken into consideration, there is no denying of the fact that motive can also be attributed to the ‘Sundhi’ boy Kishore Behera, who might have committed the murder of the deceased on his failure to get the deceased as his wife. Taking into consideration the nature of evidence, on which learned trial court has relied on, so far as this circumstance is concerned, we are constrained to hold that motive exclusively on the part of the appellant cannot be held to have been 13 proved, in as much as just some days prior to the occurrence, marriage between the deceased and the appellant was solemnized and there is nothing on record to show that the appellant at any point of time of the said matrimony had any suspicion regarding the modesty of the deceased. Learned trial court has taken clue from the defence suggestion to P.Ws. 1 and 2 regarding pre-marital affair of the deceased with one Kishore Behera to return the finding that the appellant had suspicion in his mind regarding the modesty of his deceased wife and therefore he had the necessary motive to commit the murder. By the time the trial took place and P.Ws.1 and 2 were examined, Kishore Behera had already committed suicide. Such a suggestion might have been made by the defence to locate the ‘motive’ on the part of Kishore Behera, who had a failed love affair with the deceased. In absence of any positive evidence however this circumstance cannot be held to have been proved. 15. In view of the discussions supra, the following circumstances are held to have been proved by the prosecution : - (1) Pant and shirt of the appellant were stained with the blood of the deceased. (2) Injuries as deposed by the Medical Officer P.W.16 were found on the person of the appellant. (3) Conduct of the appellant during and subsequent to the incident. So far as Circumstance no.3 supra is concerned, the conduct held to be incriminatory against the appellant (by the Trial Court) is 14 outcome of facts stated by the appellant in his statement recorded under Section 313, Cr.P.C. Such conduct has been held to be unnatural and unusual on the part of the appellant. Learned Trial Court has reached such a finding inferentially and it seems, learned Trial Court has substituted its own norms of behaviour in a given situation for the norms of behaviour of the appellant. It has not at all taken into consideration the explanation of the appellant and further fact that the appellant was acting under imminent danger, from which he and his wife were trying to escape and his wife had been left behind. It might have so happened that the appellant ran to safety, which is a normal human conduct at peril and waited for his wife expecting her to have concealed herself somewhere. By the time he regained composure, he heard shout of his wife and returned with a hope to save her. Coming near the spot, he saw her wife lying in