Jeet Amaresh Satpathy vs State Of Odisha

G. Satapathy, J.

The convict by filing this appeal U/S.374(2) of the Code of Criminal procedure, 1973(In short, the “Cr.P.C.”) seeks to assail the judgment of conviction dated 20.10.2016 passed by learned Additional Sessions Judge, Balasore in Sessions Trial No. 06/231 of 2015 whereby and whereunder the appellant was convicted for offence U/S. 302 of IPC for committing uxoricide and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default whereof, to undergo Rigorous Imprisonment for two years thereunder.

Briefly stated the facts by which the appellant was convicted giving rise to this appeal, are the deceased Nirupama Ghosh was the wife of the convict Jeet Amaresh Satpathy and their marriage was solemnized one year prior to the occurrence, but when the deceased came to know about the child born out of the previous marriage of the convict with another lady, she became annoyed and wanted to ascertain the fact from the convict, who thereupon was abusing the deceased, picking up quarrel with her and assaulting her very often. One month prior to the occurrence, the deceased had been to her parental house and asked for a sum of Rs. 50,000/- to be paid to in her in-laws, but her father (PW1) paid only Rs. 15,000/- to her by expressing his inability to fulfill the demand of rest amount. When the matter was like this, on 19.02.2015, PW1 got informed by Raibania Police that his daughter has been murdered. On getting such information, PW1 rushed to the in-law’s house of his deceased daughter located at Bagbrundaban, Balasore and found the dead body of his deceased daughter lying in a pool of blood with multiple injuries on her body in the dining space of the first floor of her in-law’s house.

On this very incident, on the same day i.e. on 19.02.2015 at about 3:10PM, PW1 lodged an FIR under Ext.1 against the convict and his family members including the first wife of the convict. Accordingly, the IIC PW-17 Bijay Kumar Murmu registered Balasore Town PS Case No. 38 of 2015 for offences punishable U/Ss. 498-A/302/304-B/34 of IPC read with Section 4 DP Act and took up the investigation. In the course of investigation, PW 17 examined the witnesses, visited the spot, held inquest over the dead body, seized incriminating articles from the spot, sent the dead body to DHH, Balasore for autopsy, seized the wearing apparels of the deceased after Post Mortem examination, apprehended the convict on 21.02.2015 and seized his wearing apparels as well as collected his biological samples, such as blood sample, nail clippings and forwarded the convict on the next date on 22.02.2015 to the Court. On completion of investigation, PW 17 submitted a charge sheet only against the convict for offence U/S. 302 of IPC.

Findings sufficient materials constituting the offence, the learned SDJM, Balasore took cognizance of offence U/S.302 of IPC and committed the case to Court of Sessions by notifying the order of commitment and following committal procedure. The learned Additional Sessions Jude, Balasore on receipt of record on transfer and finding sufficient materials to proceed against the convict framed charge against him for offence U/S. 302 of IPC. This is how the trial against the convict commenced.

In support of the charge, the prosecution examined altogether 18 witnesses and proved 15 documents under Exts. 1 to 15 as well as identified 12 material objects under MOI to MOXII as against the oral evidence of two witnesses as DW1 and DW2 by the defence. Of the prosecution witnesses, PW1 is the Informant-cum-father of the deceased; PW2 is the Doctor, who conducted autopsy over the dead body of the deceased; PW3 and 4 are the police personnel-cum-witnesses to seizure; PW 5 to 9 are independent witnesses, but they have not supported the prosecution case; PW10, 11 and 13 are the father, sister and mother of the convict; PW12 is the Doctor who had examined the convict; PW 14 is the first wife of the convict, whereas PW 15 and PW 16 are the brother and father-in-law of the elder sister of the deceased; PW17 is the IO, whereas PW18 is an independent seizure witness. On the other hand, DW1 is one of the members of the Gymnasium of the convict, whereas DW2 is the neighbor of the convict.

The plea of the convict in course of the trial was complete denial and false implication and the deceased was not his wife nor had he married to the deceased. In addition, the convict has stated in his statement U/S. 313 Cr.P.C. that on the date of occurrence, while he was in the gymnasium at about 11 to 11.30 AM, some unknown persons pushed him. He saw the dead body of one lady in the first floor of his house and his father informed the police over phone. He does not know the deceased.

After appreciating the evidence on record upon hearing the parties, the learned trial Court passed the impugned judgment convicting the appellant by relying upon the circumstances noted in paragraph-28 of the judgment which reads as under: -

“28. Before discussion on the legal aspect, I would like to mention that the materials placed before the court clearly indicate that prosecution has relied upon circumstantial evidence. Those circumstances are: -

(i) The accused and deceased were last seen together, as husband and wife.

(ii) The dead body was found in the dinning space of the first floor of the house of the accused, which is not accessible to anybody except the family members of the accused.

(iii) The weapons like, Katuri, sword, knife, broken wooden chair, gas cylinder all were found with blood stained from the dinning space of the accused.

(iv) The absence of the accused in the house soon after the occurrence.

(v) The seizure of the blood stained towel from the possession of the accused when the arrest was made, from another place i.e. Azimabad.

(vi) The blood stained found in the towel of the accused matched with the blood found in the wearing apparels of the deceased and the material objects, such as weapons used in the crime as group'B'.”

Mr. D.P. Dhal, learned Sr. Counsel appearing for the Petitioner in assailing the impugned judgment of conviction by criticizing each of the circumstances so relied upon by the learned trial Court in paragraph 28 has further submitted that the learned trial Court has based the conviction of the appellant only on surmise and conjecture by erroneously placing the burden on the defence invoking the provision of Sec.106 of  the  Indian  Evidence  Act  without  the foundational facts having been established by the prosecution. It is further submitted by learned Senior Counsel that the learned trial Court has erred in relying upon the circumstance, such as blood stain found on the towel of the convict matching with the blood stain found in the wearing apparel of the deceased, but the same is without any appreciation of evidence relating to seizure of the towel of the convict which is not at all believable, since it is unnatural conduct for an offender to be found wearing the same towel containing the blood stain upon committing the murder of a person after two days at the time of his arrest at a public place and such suspicion gets momentum, when the seizure witnesses PWs3 and 4 who are police personnel have stated in the Court that such towel was seized from the house of the appellant, but the IO testified in the Court that he seized the towel from the appellant while roaming near the road side at Azimabad and thereby, practically such seizure of towel of the appellant cannot said to have been proved by the prosecution beyond all reasonable doubt. Mr. Dhal, has further submitted that the Informant PW1 has testified in the Court that he lodged an FIR at Balasore Town PS at about 11:30 PM to 12:00 AM in the midnight, but the FIR under Ext. 1 reveals that it was lodged at 3:10PM at Police Station and thereby, there is serious discrepancy in lodging of FIR which cast serious doubt in the veracity of the FIR itself and the aforesaid confusion is further widened when the FIR was received in the Court of SDJM, Balasore on 21.02.2015 when it was dispatched on 19.02.2015, although the distance between the Police Station and Court is around two Kms and thereby, the doubts so created in the veracity of FIR was further strengthened. Mr. Dhal has further submitted that the evidence on record never establishes the marriage of the deceased with the convict, but the learned trial Court has erroneously held that the deceased and convict were married and further the learned trial Court has erroneously considered the evidence to hold that the deceased was last seen with the convict and thereby, the convict is to discharge the burden U/S. 106 of the Indian Evidence Act. It is also argued for the Appellant that the motive behind the murder has not been established by the prosecution which is in fact an important link in the circumstantial evidence and the trial Court has also erred in not appreciating the evidence of the defence witnesses who deserves equal weightage. In summing up his argument, Mr. Dhal learned Sr. Counsel by relying upon certain decisions which if found relevant would be discussed at the relevant place of the judgment, has prayed to allow the appeal by acquitting the appellant of the charge of uxoricide after setting aside the impugned judgment of conviction and order of sentence passed by learned Additional Sessions Judge in this case.

In reply, Mr. S.N.Das, learned ASC has, however, strongly refuted the submission advanced for the appellant by inter-alia contending that the circumstance so relied upon by the learned trial Court against the convict are firmly established and duly proved and such circumstances so taken cumulatively form a chain of events conclusively pointing towards the guilt of the Appellant and thereby, the Appellant cannot escape from the liability of punishment for committing murder of his own wife. Mr. Das has vehemently contended that the marriage of the deceased with the Appellant has been duly established by the oral evidence of witnesses and the convict was last seen together with the deceased and thereby, the prosecution having discharged the initial burden, the convict was supposed to discharge the onus as to how the deceased died soon after she was seen together with him, but the convict having failed to discharge the onus U/S. 106 of Indian Evidence Act, his guilt has been duly established for the charge of murder. In summing up his argument, Mr. Das has assiduously submitted that the circumstance so relied upon by the learned trial Court in paragraph 28 of the judgment has definite intrinsic value and has definite character and tendency consistent with the guilt of the Appellant and thereby, the learned trial Court has not committed any illegality in convicting the Appellant. Mr. Das, accordingly, has prayed to dismiss the appeal.

After having bestowed a careful and anxious consideration to the rival submission upon perusal of record, it appears that the present case is one in which the conviction of the Appellant is founded on the circumstantial evidence and the learned trial Court while recording the conviction against the Appellant, has taken into consideration the circumstances as adumbrated in paragraph-28 of the judgment, wherein the principal circumstances as relied on by the learned trial Court are the “last seen theory” and finding of “blood stain of the deceased on the towel” recovered and seized from the possession of the convict at the time of his arrest as well as recovery of “blood stain weapons, like katari, sword, knife, broken wooden chair and gas cylinder” from the dining space of the house belonging to the convict. It be, however, at this stage noted that there is no dispute with regard to the homicidal death of the deceased, since the same is forthcoming from the unchallenged testimony of P.W.2-Dr. Bishnupriya Das, who had conducted post-mortem examination on the dead body of the deceased, when the defence has never disputed the homicidal death of the deceased in cross-examination of the doctor.

Moving on to the “last seen theory”, it is the settled position that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen together alive and when the death is detected, is so small that possibility of involvement of any person other than the accused being the author of the crime becomes impossible. In this case, none of the witnesses has ever stated in their testimony to have seen the deceased together with the convict immediate before the gruesome crime was committed, but the learned trial Court has mainly relied upon the evidence of P.Ws. 1, 15 & 16 to come to a conclusion that the deceased was last seen with the convict, but none of these witnesses has ever stated in their testimonies that they had seen the convict with the deceased just before the crime.

On close scrutiny of evidence of P.W.1, who is the informant-cum-father of the deceased, it appears that he had given his daughter-cum-deceased in marriage to the convict in the month of January, 2014 and after 6 to 7 months of marriage, she came to his house and said that the accused and his parents are demanding dowry of Rs. 50,000/-, to which he expressed his inability to pay and then, the deceased told him, unless the demand of dowry is fulfilled, the accused and his parents would kill her. It is further the evidence of P.W.1 that on 19.02.2015, the O.I.C. Raibania P.S. informed him that his daughter has been murdered in the house of the accused and he reached the house of the accused at about 7 P.M. on the same day and found the dead body of his daughter lying in the house. It, therefore, appears that the testimony of P.W.1 is of no avail to infer the “last seen theory” to evidence that the deceased was last seen with the accused, since PW1 has not stated anything to have seen the deceased with the convict shortly before the crime, rather from his evidence, it transpires that he reached at the spot at about 7 P.M. in the evening, whereas the admitted evidence of the prosecution is that the informant-cum-P.W.1 lodged the F.I.R. at about 3.10 P.M. on 19.02.2015 on receipt of information from the Raibania Police. Further, from the testimony of P.W.15, who is the younger brother of the deceased, it transpires that he along with his father and younger brother Rajib Kumar Ghosh on receipt of information about the murder of the deceased came to the house of the accused and saw the dead body lying with cut injuries on different parts on her body including her eyes and back and the Police came to the house of the accused and therefore, the evidence of P.W.15 also does not throw any light with regard to the “last seen theory”. Now coming to the evidence of P.W.16, nothing is found to infer any “last seen theory”, rather the testimony of P.W.16 only transpires that he arrived in the spot house at about 5 P.M. and found the dead body of the deceased lying on the 1st floor of the house in the dining hall. However, the learned trial Court on analysis of evidence and by relying on the evidence of these three witnesses has come to a conclusion in paragraph-41 that the accused and the deceased were staying at Bagbrundaban in the house of the accused-convict and on the relevant day, there was homicidal death of the deceased and accordingly, the convict is to explain the circumstance as the accused was last seen with the company of the deceased in terms of Section 106 of Indian Evidence Act, but the convict has failed to offer any explanation. It is never the intention of the legislature to say that merely because two persons were residing together in a house along with others and one of them suffered homicidal death, it would not necessarily mean that the deceased was last seen in the company of others. Further, unless there is evidence to indicate that the deceased and the offender were last seen together just or shortly before the commission of crime, when the time gap between the two is very short, the “last seen theory” would not stand to the aid of the prosecution case. In this regard, this Court is fortified with the decision in the case of Shivaji Chintappa Patil vs. State of Maharastra; 2021 (5) SCC 626 wherein, the Apex Court at paragraph-23 has held as under: -

“23. It could thus be seen that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.”

Admittedly, in this case not only the convict was residing in the spot house, but also his family members were staying together with him and therefore, no last seen theory can be pressed into service to record the conviction of the Appellant, merely on the ground that the dead body of the deceased was recovered from the said house wherein the Appellant and others were staying as the inmates. Even otherwise, if the deceased was considered to be the wife of the Appellant, it would not necessarily give rise to any presumption that the Appellant might have killed the deceased, since no evidence whatsoever has been tendered/brought to indicate that the deceased was last seen together with the Appellant shortly before her death. Further, the evidence on record does not disclose the precise time of death of the deceased, no matter the evidence only suggests that the informant learnt from Raibania Police about the murder of the deceased and he, thereafter, proceeded to lodge F.I.R. at about 3.10 P.M. on 19.02.2015. Further, the learned trial Court has also analyzed the evidence of P.Ws. 10 & 11, who are the father and sister of the convict and compared with the evidence of defence witnesses D.Ws.1 & 2 while concluding that the deceased was last seen with the convict, but here it is to be reminded that neither P.W.10 nor P.W.11 has supported the prosecution case and their evidence do not indicate about the deceased to be last seen in the company of the Appellant, rather their evidence only indicates that there was exchange of words between a man and a lady for about seven minutes and they heard sound of people in their house and outside, and someone opened the door of the room and came outside and they found the lady lying on the floor on the dining space of their house with bleeding injuries. Be it noted, PWs. 5 to 9, 13 & 14 have not supported the prosecution case, but it transpires from the evidence of PWs. 5 & 6 that on the relevant time, they heard noise from the house of the accused and went to the house to find only a man chasing a lady going outside of the house and dead body of such lady lying dead in the up-stair, which is the evidence of DWs. 1 & 2 in essence. Further, the evidence of PWs. 5 & 6 and DWs. 1 & 2 transpires that the convict was running Gymnasium in the occurrence house and some persons were present in the Gymnasium at the relevant time of occurrence. It is, therefore, clear that the “last seen theory” as pressed into service in this case is misconceived and has not been established by the prosecution.

One of the important pieces of evidence as relied on by the learned trial Court to convict the Appellant is finding of blood stain of the deceased on material objects which includes the towel recovered from the possession of the convict at the time of his arrest. The law is well settled that finding of blood stain of the deceased on the wearing apparels of the accused cannot be considered as conclusive proof of the guilt of the offender/accused, no matter it may corroborate the other evidence. What is most significant in this case is that the evidence of relevant witnesses when scrutinized in this regard about the finding of blood stain on the towel recovered from the convict, it appears from the testimony of the I.O.-cum-P.W.17 that he apprehended the convict after two days of the occurrence from Azimabad and seized his wearing apparels under Ext.5, but his evidence is quite silent with regard to recovery and seizure of towel, however, it comes to surface from the testimony of the seizure witnesses P.W.3 and 4, who are Police Havildar and Constable that on 21.02.2015, the I.I.C. seized one white-black towel from the house of the convict-Jeet Amaresh Satpathy under seizure list Ext.5 and therefore, the evidence of I.O. varies with the evidence of seizure witnesses with regard to place of recovery and seizure of the towel of the convict. Further, it is normally unexpected that a person upon committing a murder would keep the towel stained with blood of the deceased with him all alone even after for two days of committing the crime and therefore, in the aforesaid circumstance of evidence of PWs. 3, 4 & 17, the recovery and seizure of towel from the possession of the convict appears to be doubtful and any blood stain of the deceased found thereon cannot be used against the convict for the charge of murder. Additionally, in absence of proof of the circumstance of “last seen theory”, the Appellant cannot be convicted merely finding of blood stain on the towel recovered from the Appellant as a conclusive proof of his guilt to the charge of murder.

Law is fairly well settled that an offender can be convicted on the basis of circumstantial evidence, but such circumstantial evidence must have definite tendency and character to proof the guilt of the accused beyond all reasonable doubt. The principle under which an offender can be convicted by circumstantial evidence has been laid down by the Apex Court in a catena of decisions and one of such decision is the case of Sharad Birdhichand Sarda vs. State of Maharastra; (1984) 4 SCC 116 wherein the Apex Court at paragraph-152 has laid down the following guidelines which reads as under: -

"152. A close analysis of this decision would show that the following conditions 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.

It may be noted here that this Court Indicated that 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” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793; where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that 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 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,

(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 the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Yet, another important aspect to suspect the circumstance as relied on by the prosecution is the delay in receipt of FIR in the court of learned SDJM, Balasore which indirectly speaks about delay in dispatch of FIR in terms of Sec. 157 of Cr.P.C, since the FIR in this case was registered at about 3.10PM on 19.02.2015, but the learned SDJM, Balasore received the FIR after two days of its registration on 21.02.2015 and the distance between PS and Court might be less than three kilometer. In such situation, it was the duty of the prosecution to explain the delay of dispatch of FIR, but it has failed to explain such delay. It is axiomatic that delay in dispatch of FIR ipso facto cannot create any doubt in the veracity of FIR, unless such delay in dispatch of it is proved to have been used for manipulating the FIR which the defence has to be establish, either by cross examining the informant and the IO or by producing any independent materials or evidence. However, in a case of this nature, which is based on circumstantial evidence on “last seen theory” which has not been established by the prosecution, the delay in dispatch of FIR strikes down to the root of the prosecution case. However, the delay in dispatch of FIR to the Court is not always fatal to the prosecution case, if the delay has been properly explained and such delay has no bearing to the merit of the case, but when the delay in dispatch of FIR has not been properly explained and it is established that such delay is product of manufacturing the case against the accused person(s), which is obviously prejudicial to the accused person(s), in such event the delay in dispatch of FIR in terms of Sec. 157 of Cr.P.C. would caste a serious doubt in the prosecution case and, thereby, it would be fatal to it then. In the present case, the prosecution has not been able to explain the delay in dispatch of FIR which in the circumstance of the failure of the prosecution to establish “last seen theory” or link the circumstances to the guilt of the accused, creates further doubt in the prosecution case.

In the above backdrop of discussions and on a close scrutiny of the evidence available on record, this Court neither finds any evidence to infer the “last seen theory” in this case nor the circumstance which were relied on by the learned trial Court to be of such nature to establish the guilt of the convict for the charge of murder. Further, the circumstance so relied on by the learned trial Court in the form of finding of blood stain of the deceased on the towel of the convict appears to be doubtful and therefore, no link to maintain the chain of circumstantial evidence has been established by the prosecution to connect the convict with commission of crime. Thus, this Court does not find any acceptable material/evidence to rule upon the guilt of the accused beyond all reasonable doubt and the conviction of the Appellant being unsustainable in the eye of law, is liable to be set aside.

In the result, the appeal succeeds and the conviction of the Appellant is hereby set aside. Consequently, the judgment of conviction and order of sentence dated 20.10.2016 passed by learned Additional Sessions Judge, Balasore in Sessions Trial No. 06/231 of 2015 are hereby set aside.

Since the appellant is in custody, he be set at liberty forthwith, if his detention is not required in any other case.

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