ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 47 of 2000 From the order of conviction and sentence dated 23.12.1999 passed by Shri M. Papanna, Addl. Sessions Judge, Sambalpur in S.T. Case No. 136/7 of 1998),Under Sections 302/201/34, I.P.C. ---------- Netrananda Naik … Petitioner Versus State of Orissa … Opposite Party For Petitioner : Mr. B. Sahoo, Advocate. For Opp. Party : Addl. Standing Counsel. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Judgment : 09.07.2010 --------------------------------------------------------------------------------------------------- C.R. DASH, J. In S.T. Case No. 136/7 of 1998, learned Addl. Sessions Judge, Sambalpur found the present appellant Netrananda Naik and one Kishore Bag guilty of offence under Section 302/34 of the Indian Penal Code (in short ‘I.P.C’). He further found the present appellant guilty of offence under Section 201, I.P.C. He sentenced both the aforesaid convicts to suffer R.I. for life and to pay a fine of Rs.5,000/- (five thousand) each, in default to suffer further R.I. for one year each under Section 302/34, I.P.C. He sentenced the present appellant to suffer R.I. for three years and to pay a fine of Rs.1,000/- (one thousand), in default to suffer further R.I. for three months with direction that both the sentences shall run concurrently. The present appellant Netrananda Naik alone has preferred this appeal impugning the aforesaid judgment and order of sentence. 2. Prosecution case, stated succinctly, runs as follows - It was 5.30 p.m. on 15.12.1997. Deceased Mithila and Sukanti (P.W.9) went to river Bheden at that time to attend call of nature. Deceased Mithila did not return home. Her brother (P.W.7), her mother (P.W.1), her elder sister (P.W.2) and her sister-in-law (P.W.3) searched for her in vain. P.W.7, brother of the deceased went to the house of Sukanti (P.W.9) and asked her regarding whereabouts of his sister (deceased). Sukanti (P.W.9) replied that she came back, as Mithila (deceased) delayed in attending call of nature. When the deceased was not found in the night, P.W.7, brother of the deceased brought the matter to the knowledge of the villagers in the next morning, i.e., 16.12.1997. One Krushna Chandra Naik (P.W.8) informed that on being asked by him (P.W.8) in the morning Sukanti (P.W.9) told him that Mithila has been murdered. Present appellant Netrananda previously had threatened the deceased to murder her. P.W.7, brother of the deceased therefore lodged F.I.R., vide Ext.4, in Mahulpali P.S. against the present appellant Netrananda Naik. The I.O. (P.W.12) in course of the investigation arrested the present appellant, who, while in custody, confessed his guilt and led the I.O. 2 and the witnesses to “Tumki Darha” (gorge) of river Bheden, from where dead body of the deceased was recovered. On completion of the investigation, the I.O. (P.W.12) filed charge-sheet implicating the present appellant for offence punishable under Sections 302/201, I.P.C. 3. The trial of the present appellant was taken up on framing of charge against him on 09.08.1999. During the trial Sukanti Sohela, present P.W.9, was examined as P.W.5. She implicated Kishore Bag, whom the I.O. (P.W.12) during investigation had examined as an occurrence witness. On the basis of the evidence of Sukanti (P.W.5), learned trial Court on being moved by the prosecution, impleaded Kishore Bag as a co-accused invoking jurisdiction under Section 319, Cr.P.C. The trial was again resumed de novo after Kishore Bag was brought as an accused on record. 4. In order to prove the charge, prosecution has examined twelve witnesses. As introduced earlier, P.Ws.1, 2, 3 and 7 are respectively mother, elder sister, sister-in-law and brother of the deceased. P.W.9 is the lone eye-witness. P.W.6 is an independent witness, in whose paddy field there was a quarrel between deceased Mithila and mother of the present appellant eight to ten days prior to the occurrence. P.W.8 is Krushna Chandra Naik, before whom Sukanti (P.W.9) had told in the morning following next the evening of occurrence that Mithila has been murdered. P.Ws.10 and 11 are the witnesses to recording of confessional statement of the accused leading to discovery of the dead body. P.W.5 is a witness to the 3 seizure of the wearing apparels of the deceased. P.W.4 is the Medical Officer, who conducted autopsy over the dead body. P.W.12 is the Investigating Officer. Defence plea, so far as the present appellant is concerned, is one of denial and false implication. 5. Admittedly, death of the deceased Mithila is a homicidal death. Such a fact is also otherwise proved by the evidence of the Medical Officer (P.W.4) and the circumstances under which dead body of the deceased was recovered from “Tumki Darha” of river Bheden. On the question of complicity of the present appellant in the offence alleged, learned trial court has disbelieved P.W.9 as an occurrence witness and has found the present appellant guilty of offence on the basis of circumstantial evidence. 6. P.W.9, as found from paragraph-12 of the impugned judgment, has been disbelieved by the learned Trial Court as an occurrence witness on the following grounds - “12. Prosecution has fairly admitted that though Sukanti (P.W.9) was very well present at the river ghat by the time when she heard ‘ghar-ghar’ sound of the deceased, she has not gone to the spot wherefrom the said sound was coming. So she has not practically seen the ghastly murder of the deceased. As such inference of guilt of an accused person is to be drawn from the circumstantial evidence available in the record. …….” 7. After returning such a finding, as aforesaid, learned Court below in paragraph-19 of the impugned judgment has relied on the following circumstances without discussing as to who are the 4 witnesses or what are the materials available on records to prove these circumstances. (i) Crying of the deceased for help from Kishore (co- accused) (ii) Sound of the deceased for help coming as if her mouth was gagged at the time of occurrence. (iii) Accused Kishore asking Sukanti (P.W.9) to quite the place of occurrence and threatening her (P.W.9) not to disclose the incident before anybody. Perusal of the entire evidence on record makes it clear that it is P.W.9 alone, who could have proved the facts constituting the aforesaid circumstances. Learned Trial Court, however, without any discussion has held the aforesaid circumstances to have been proved by the prosecution. 8. Such a course, as aforesaid, adopted by the learned trial court makes it obligatory on our part to find out whether P.W.9 is to be disbelieved in entirety or any part of her evidence can be taken into consideration. P.W.9 was examined as P.W.5 earlier in course of trial before impleading Kishore Bag as a co-accused. On both the occasions she was cross-examined by the prosecution under Section 154 of the Evidence Act. Such cross-examination of Sukanti (examined as P.W.5 and subsequently as P.W.9) by the prosecution tilts our view in favour of a definite conclusion that Sukanti (P.W.9) is an infirm witness. She (P.W.9), therefore, cannot be believed without 5 corroboration of her evidence in material particulars. Learned trial court, as it seems, in very improper manner, has picked up some of the statements of P.W.9 made before the police during her examination under Section 161, Cr.P.C. and has treated the same as evidence. Learned Trial Court has mostly relied on the cross-examination of P.W.9 by the Public Prosecutor, which is nothing but confrontation by the Public Prosecutor to the witness the statement made by her before the police during her examination under Section 161, Cr.P.C. Such answer by a hostile witness which is suggestive of fact that witness had stated before the Investigating Officer during his/her examination under Section 161, Cr.P.C. cannot be held to be evidence under Section 3 of the Evidence Act. If the evidence of P.W.9 is read in its entirety, no reliance can be placed on her, because of the prevaricative statements given by her before the police during her examination, improvements made by her during her examination in the Court on previous occasion as P.W.5 and her testimony as P.W.9 on subsequent occasion. P.W.9 also in her cross-examination in clear term has testified that she has not seen the occurrence in the darkness. There is also no corroboration to the evidence of P.W.9 in material particulars so far as the aforesaid circumstances are concerned. P.W.9 cannot at all be believed on any aspect of her evidence. In view of such facts the circumstances afore-quoted, which could have been proved by P.W.9 alone cannot be held to have been proved by the prosecution. 9. Other circumstances, which have been relied on by the learned Court below in paragraph-19 of the impugned judgment are – 6 (i) There was illicit love affair between the deceased Mithila and the present appellant; (ii) Quarrel between the deceased and mother of the present appellant eight to ten days prior to the occurrence; (iii) Pregnancy of the deceased, which is the result of her illicit relationship with the present appellant; (iv) Discovery of the dead body of the deceased on the basis of disclosure statement made by the appellant; and (v) Seizure of the shawl (M.O.-VI) belonging to the present appellant and that shawl was tied to the waist of the deceased. So far as circumstance nos. (i) and (ii) supra are concerned, P.Ws.1, 2, 3, 6 and 7 are the witnesses to prove the same. P.W.6 is an independent witness and in her paddy field quarrel between deceased Mithila and mother of the present appellant happened eight to ten days prior to the occurrence. She has not stated about presence of P.Ws.1, 2, 3 and 7 at the time of such quarrel. P.W.2, elder sister of the deceased has candidly admitted that she has no personal knowledge about the quarrel. P.W.7, brother of the deceased is silent about the factum of quarrel. P.W.1, mother of the deceased and P.W.3, sister-in-law of the deceased (P.W.7’s wife) have improved the version by testifying that the aforesaid quarrel between the deceased and mother of the present appellant happened for illicit relationship between the deceased and the present appellant, but both the aforesaid witnesses, as found from cross-examination of P.W.1 and P.W.12 (so far as P.W.1 is concerned) and cross-examination of 7 P.W.3, have been successfully contradicted under Section 145 of the Evidence Act. Evidence of P.Ws.1, 3 and 6 therefore can be believed to the extent that there was quarrel between the deceased and mother of the present appellant eight/ten days prior to the occurrence. But the evidence of the aforesaid witnesses (P.Ws 1, 3 and 6) cannot be stretched further to infer that such quarrel between the deceased and the present appellant happened for illicit relationship between the deceased and the present appellant. P.W.1 alone has testified that present appellant had illicit relationship with her daughter deceased Mithila, but cross-examination of P.W.1 and the I.O. (P.W.12) shows that P.W.1 has been contradicted under Section 145 of the Evidence Act on this aspect. In such view of the matter, circumstance no.(i) cannot be held to have been proved. So far as circumstance no. (iii) is concerned, the Medical Officer (P.W.4) has testified about the fact that the deceased was carrying conception of two to three months duration at the time of the post-mortem examination. Such evidence of P.W.4 cannot be stretched further to infer that present appellant was the author of the pregnancy of the deceased. As because there was quarrel between the deceased and mother of the present appellant in course of their engagement in work in the paddy field of P.W.6 and as because the deceased was pregnant, it cannot be inferred from such evidence alone that present appellant was author of such pregnancy and the quarrel, as aforesaid, happened, as there was illicit relationship between the deceased and the present appellant and mother of the present appellant was not ready to accept the deceased as her daughter-in-law. Without any discussion, learned court below has held the aforesaid circumstances nos. (i), (ii) and (iii) 8 to have been proved and has further held that motive on the part of the present appellant to commit the murder has also been proved. 10. Learned Court below while appreciating the circumstantial evidence has not properly conducted himself so far as the approach to such evidence is concerned. Hon’ble Supreme Court in the case of M.G. Agarwal 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 is consistent only with his guilt. If the circumstances proved in the case are consistent either with innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. Proceeding further, Hon’ble Apex Court has held that it is necessary to distinguish between 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 regard to the proof of primary or basic facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of those basic or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused persons or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and inference of guilt can be drawn only if the proved fact is wholly 9 inconsistent with the innocence of the accused and is consistent only with his guilt. With the aforesaid principle in mind, if circumstance nos. (ii) and (iii) with the extent of their proof as discussed supra, are taken into consideration, motive on the part of the present appellant as a fact cannot be held to have been proved. 11. Coming to circumstance no. (v), learned Trial Court relies on Ext.6, which is the disclosure statement made by the present appellant, but there is nothing on record to show that the shawl vide M.O.-VI belongs to the present appellant. Rather P.W.5, who is a witness to seizure of wearing apparel of the deceased including M.O.- VI, in her cross-examination has testified that the I.O. told him that the deceased was wearing the M.Os. at the time of occurrence. This circumstance, therefore, cannot be held to have been proved. 12. The last circumstance that remains for consideration is discovery of the dead body of the deceased from “Tumki Darha” at the instance of the present appellant on the basis of disclosure statement made by him. So far as this circumstance is concerned, it is well settled in law that the manner of commission of murder, as confessed by the accused in his statement under Section 27 of the Evidence Act, cannot be taken into consideration. So much of information, which only facilitated the alleged discovery, is only relevant. Learned Trial Court, as it seems, has been swayed away by the confession of the present appellant in the disclosure statement. Assuming argundo this circumstance to have been proved, no 10 inference of guilt of the present appellant so far as murder of deceased Mithila is concerned, can be drawn. This circumstance in the scheme of circumstantial evidence is only an additional link, if there are other proved facts on record to justify inference of guilt of an accused. 13. In view of our discussion supra, the charge under Section 201, I.P.C. also fails, in as much as there is no evidence to prove the fact that it was the present appellant who had concealed the dead body of the deceased in the water of “Tumki Darha” of river Bheden. 14. In view of our discussion supra, we are constrained to set aside conviction of the appellant under Section 302/201/34, I.P.C. and sentence passed thereunder. The Jail Crl. Appeal is accordingly allowed. The appellant be released forthwith, if his detention is not required in any other case. ……………… L. Mohapatra, J. I agree. ……………… Orissa High Court, Cuttack. The 9th day of July, 2010. /Parida. 11