PRADIP MOHANTY, J & S.K.MISHRA, J. JCRLA. NO.22 OF 2001 (Decided on 14.07.2010) RAMAKANTA PATEL ……………. Appellant. .Vrs. STATE OF ORISSA ……………. Respondent. For Appellant - Miss Tapaswini Sinha. For Respondent – Mr. S.K.Nayak Addl. Govt. Advocate. PRADIP MOHANTY,J. In this Jail Criminal Appeal, the appellant challenges the judgment and order dated 08.01.2001 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.177/19 of 2000 convicting him under Sections 302 and 201, I.P.C. and sentencing him to undergo imprisonment for life for the offence under Section 302, IPC and rigorous imprisonment for seven years for the offence under Section 201, IPC . 2. The case of the prosecution is that on 05.02.2000 the accused, who happens to be the maternal uncle of P.W.2, arrived at the house of one Kartik Patel at Jharsuguda where P.W.2 was staying and confessed before P.W.2 that he (accused) and his wife (deceased) were going to the house of the uncle (Mausa) of P.W.2 for procuring money. On their way, on the river bed of Telen the accused throttled the deceased to death and buried her dead body in the sands of the said river. On hearing that, P.W.2 asked the accused to wait and proceeded outside but during his absence the accused escaped from the said house. P.W.2 searched for the accused and first went to village Kainsir where he informed the facts to his relatives and villagers. Then he (P.W.2) proceeded to the house of his ‘MAUSA’ Naba Bhusan Patel in village Mundrajor and informed him about the extrajudicial confession and absconding of the accused. Thereafter, all the caste people searched for the accused and on 13.02.2000 traced him at village Kudaloi. They brought him to village Mundrajor and proceeded to the river bed of Telen. There P.W.2 and others found the saree and tuft of the deceased lying and the face and the leg below the knee to have been devoured by stray dogs and wolves. Narayan Patel, the son of the accused, identified the Sambalpuri saree and blouse which were lying on the bed of river Telen near the deceased. There also the accused confessed before P.W.2 and other caste people that on 04.02.2000 at about 4 p.m. he and his wife Bilash got down at Ainthapali Chhak from the Trekker and while proceeding to Mundrajor the accused on the pretext of easing himself on the river bed of river Telen proceeded there and throttled his wife to death as the deceased had illicit relationship with her brother-in- law (BHENEI) Dinger Patel and to wipe out the evidence buried the dead body of his wife in the sands of river Telen. It is alleged that the accused had made such extrajudicial confession before Naba Bhusan Patel (P.W.3), Tularam Patel (P.W.4), Kamal Lochan Patel and Sankarsan Patel, etc. P.W.2 orally reported the matter on 14.02.2000 before the OIC, Loikera P.S. and on receipt of the same the police registered the case, took up investigation and on its completion placed charge-sheet against the accused. 3. The plea of the appellant is one of complete denial of the allegation. His further plea is that he was always respecting his wife and he does not know if his wife is alive or dead and he has been falsely implicated in this case. 4. In order to prove its case, prosecution has examined as many as eight witnesses including the doctor and the I.O. and exhibited five documents. Defence examined none. 5. The trial court on conclusion of trial convicted the appellant under Sections 302 and 201, IPC and sentenced him to undergo imprisonment for life for the offence under Section 302, IPC and rigorous imprisonment for seven years for the offence under Section 201, IPC with the finding that the chain of circumstances, namely, the last seen theory, recovery of the skeletonised dead body of the deceased, extrajudicial confession made by the accused before his own ‘BHANAJA’ (P.W.2) on 05.02.2000 and the conduct of the accused and his failure to explain as to what happened to his wife has established that the accused throttled his wife to death and buried her dead body. 6. Learned counsel for the appellant assails the judgment of the trial court inter alia on the following grounds:- (i) In the instant case, the chain of circumstances is not complete; (ii) Extrajudicial confession made by the accused is unacceptable, since it is not corroborated by any other evidence; (iii) P.W.2 before whom the accused had allegedly made extrajudicial confession did not disclose the same on that day to anybody else including P.W.1, the son of the accused and the deceased; and (iv) There was delay in lodging the FIR. He places reliance on the judgments of the apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1621, and State of Tamil Nadu v. Manmatharaj, 2009 (2) SBR 52. 7. Mr. Nayak, learned Additional Government Advocate, on the other hand, supports the impugned judgment and contends that the circumstantial evidence available on record clearly establishes that it is the accused-appellant who committed murder of his wife by throttling and buried her dead body in the sands of river Telen at Mundrajor in order to cause disappearance of evidence. 8. Perused the LCR and the decisions cited on behalf of the accused-appellant. P.W.1 is the son of both appellant and the deceased. He stated in his evidence that on 04.02.2000 his father and mother (appellant and the deceased) left the home of his ‘Aja’ for Mundrajor for procuring money from his ‘Piusa’. His father returned to the house of his ‘Aja’ on 06.02.2000 but his mother did not. On query his father replied that his mother would return subsequently along with his ‘Piusa’. On 06.02.2000 at about 4.00 p.m., P.W.2 Kirti Patel came to the house of his ‘Aja’ and without telling anything about his mother left the house. He again came on 09.02.2000 and asked him (P.W.1) to 2 accompany him as his father and mother were engaged in a hitch. Accordingly, P.W.1 accompanied P.W.2 to village Mundrajor along with his ‘Aja’ and Chamar Patel (P.W.7). There when P.W.1 enquired about his mother, P.W.2 disclosed that his mother had been killed by his father. They searched for his father and recovered him from village Kudaloi on 13.02.2000 and brought him to village Mundrajor. On query, his father confessed in presence of the villagers to have killed his mother suspecting infidelity over her relationship with his ‘Mausa’ (Dinger Patel). In cross-examination, he specifically admitted that from 09.02.2000 to 13.02.2000 they only searched for his father but did not try to locate the dead body of his mother as nothing was disclosed before them by Kirti (P.W.2) regarding that. He also admitted that he did not ask P.W.2 as to why his father killed his mother and where he disposed of her dead body. When accused made extrajudicial confession before the villagers, he was not present there. He further admitted that on 14.02.2000 the accused made confession before the villagers in presence of the police. P.W.2 is the nephew (Bhanaja) of the accused. He stated in his examination-in- chief that on 05.02.2000 while he was in the house of his brother-in-law (Bhenoi) at Mundrajor, accused came there at 8.00 a.m. and disclosed before him that he had killed the deceased. He enquired as to why he did so, but the accused did not disclose the reason. Then he went outside for some work asking the accused to wait for some time, but on return he did not find the accused there. On 06.02.2010, he proceeded to Kainsir suspecting that the accused might have gone there but did not find him. On the next day, he returned to his village and enquired from his ‘Mousa’ Nababhusan Patel about the accused, but he expressed his ignorance. Ultimately, on 14.02.2000 they found the accused in village Kudaloi in the house of his ‘Sadu’ and brought him to their village. When the villagers asked about the whereabouts of the deceased, the accused disclosed to have killed her. He proceeded to Laikera P.S. along with P.W.1 and orally reported the matter which was reduced to writing by the police. He proved the FIR (Ext.2) and his signature thereon marked Ext.2/1. On receipt of such information when police arrived, the accused in presence of the police and the villagers confessed to have killed the deceased and led the police and others to the place where he had concealed the dead body. There police found some skeletal bones, blouse and saree and seized the same after P.W.1 identified the saree and blouse to be of his deceased mother. In cross-examination, he admitted that on 05.02.2000 when the accused disclosed the fact of committing murder of the deceased, immediately he did not go to village Mundrajor nor proceeded to Telen river bed to locate the dead body of the deceased. He also admitted that on 06.02.2010 when he arrived in village Kainsir to ascertain the truth, he did not disclose the said fact before P.W.1, who is none else than the son of the deceased and the accused. P.W.3 is the brother-in-law of the accused. He stated in his evidence that six to seven months back from the date of his examination P.W.2 came to his house and enquired about the accused and his wife. When he replied in the negative, P.W.2 disclosed before him that the accused had killed his wife. He advised P.W.2 to proceed to Kainsir and report the matter to the father-in-law of the accused. P.W.2 then proceeded to Kainsir but he did not find the accused there in the house of his father-in- law. Four to five days after, P.W.2, mother-in-law of the accused and P.W.1, the son of the accused came to his house. All of them searched for the accused and ultimately they could detect him in village Kudaloi. On 13.02.2000, P.Ws.1 and 2 came to the 3 village and proceeded to the police station to report the matter. In cross-examination, he admitted that when P.W.2 disclosed before him that the accused had killed his wife, he did not try to ascertain where the accused killed his wife and for what reason. P.W.4 is stated to be a witness to the inquest. He proved the inquest report (Ext.1) and his signature thereon marked Ext.1/2. P.W.5 is the police constable who was then attached to Laikera police station. He stated to be a witness to the seizure of saree, blouse, saya (of yellow colour), broken bangles and two bangles vide seizure list (Ext.3). In cross-examination, he stated that all these articles were sent by Thana Babu on being produced in the department of F.M.T., V.S.S. Medical College, Burla. P.W.6 is the Investigation Officer, who registered the case, held inquest, prepared the spot map, seized the wearing apparels of the deceased, examined the witnesses and ultimately filed charge-sheet. He also proved the seizure Ext.3. He admitted in his cross-examination that on 05.02.2000 though the accused made extrajudicial confession before Kirti (P.W.2) and disclosed to have concealed the dead body in the river bed of Telen at Mundrajor, they did not make any search for tracing out the dead body. P.W.7 is the ‘Samudi’ of the accused whose daughter has married his son. He stated in his examination-in-chief that on getting information he accompanied Kirti (P.W.2) to village Mundrajor and found the accused there. Later on, police came and in their presence the accused confessed to have killed the deceased by throttling and concealed her dead body in the sands of river Telen and saying so led them and the police to the bed of river Telen and showed the place where he had concealed the dead body of the deceased. P.W.8 is the doctor who stated that on 15.02.2000 on police requisition she examined the skelitonized dead body of the deceased whose soft tissues were almost eaten away by carnivorous animals. Skull was exposed and scalp tissue absent. The abdominal wall and chest with soft tissue were eaten away. Neck tissue, face tissue and scalp tissue were missing. After processing of bones she examined them on 27.05.2000 and found the skeletonized dead body to be of a female aged about 30 to 40 years. She did not find any ante mortem injury marks on the bones and residual soft tissue present over the body and could not give any conclusive opinion as to the cause of the death. 9. In this case, nobody has seen the appellant committing the murder of the deceased. The trial court has convicted the appellant basing on the circumstantial evidence, such as, the last seen theory; recovery of skeltonised dead body said to have been identified by P.W.1, the son of the deceased; the extra judicial confession said to have been made by the appellant before his own ‘BHANAJA’ P.W.2 on 05.02.2000 and the conduct of the appellant and his failure to explain as to what happened to his wife. The apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1621 has held that in a case where the evidence is of a circumstantial nature, the following conditions must be fulfilled: 4 (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Keeping these five golden principles in view, this Court examined the evidence of the witnesses available on record. P.W.2 before whom the appellant is said to have made extrajudicial confession on 05.02.2000 did not intimate the said fact till 09.02.2000 to P.W.1, the son of the deceased, P.W.3 and other villagers. On 09.02.2000, before the villagers he only disclosed that the appellant confessed before him to have committed the murder of the deceased but did not disclose about the concealment of the dead body. Only on 14.02.2000, P.W.2 disclosed about the concealment of the dead body in the sands of river Telen at village Mundrajor. This witness (P.W.2) in his examination-in-chief has not stated that on 05.02.2000 the accused confessed before him that he had concealed the dead body in the sand. Only on 14.02.2000 he came to know about the concealment of the dead body. In cross-examination, he also adhered to the above statement. But in the FIR he has stated that the accused confessed before him on 05.02.2000 that he had concealed the dead body in the sand. This witness has given prevaricating statements from time to time. He also did not disclose the above fact till 14.02.2000 and did not lodge the FIR even if he knew the fact of murder and concealment of the body and did not try to recover the body. During this time, he was only searching for the accused. From this, it is clear that he is not a trustworthy witness. The so called extrajudicial confession made by the appellant before the villagers on 14.02.2000 is not admissible in law because P.W.7 in his evidence has stated that while the appellant was making such confession the police personnel were present. As regards last seen theory, P.W.1 has stated that on 04.02.2000 both the appellant and the deceased left for Mundrajor together. The dead body of the deceased was recovered on 13/14.02.2000. Therefore, it cannot be said that deceased and the appellant were seen together by P.W.1 just before her death. The doctor (P.W.8), who conducted autopsy over the skeletonised dead body of the deceased, has not given any conclusive opinion with regard to the cause of death of the deceased. For all these reasons, this Court arrives at the conclusion that the chain of circumstances is not complete to establish that it is the appellant and appellant alone who has committed murder of the deceased. 10. In the result therefore, the appeal is allowed, the impugned judgment of conviction and sentence recorded by the learned Addl. Sessions Judge in S.T. Case 5 No.177/19 of 2000 is set aside and the appellant is acquitted of the charges. He be set at liberty forthwith, unless his detention is required otherwise. Appeal allowed. 6