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Judgment
Sashikanta Mishra, J.
The appellant, Kanhu Charan Nahak and his parents, namely, Udaynath Nahak (father) and Padmabati Nahak (mother), faced trial in Sessions Case No.26 of 2001 in the Court of learned 2nd Addl. Sessions Judge, Berhampur. All of them were charged under Sections 498-A/304-B and 34 of IPC and Section 4 of the Dowry Prohibition Act. Besides, the appellant was charged under Sections 302 and 201 of IPC for committing the murder of his wife (Runu). By judgment passed on 12.09.2003, the trial Court while acquitting the other accused persons, held the present appellant guilty of the offences under Sections 302/201 IPC and convicted him thereunder. As such, he was sentenced to imprisonment for life.
The present appeal is directed against the aforesaid judgment.
Prosecution case, briefly stated is as follows:-
Accused-Kanhu had a love affair with Runu, daughter of Kailash Biswal of the same village, namely, K Lachmanpalli. Both of them were married on 20.01.2000 with such marriage being registered. The father of the bride paid necessary dowry articles and cash on the demand of the parents of Kanhu. However, they demanded further dowry, which he could not meet. As a result, Runu was driven out from her matrimonial home. Shortly after the marriage, she came and resided in her parents’ house. Kanhu used to regularly visit there. On 19.05.2000, he came and took his wife Runu to witness the Thakurani Yatra at Boirani. They did not return thereafter. On 23.05.2000, a dead body was found floating in river Dhanei at village Sunaripada. It was reported to the Kabisuryanagar Police by the local Grama Rakhi, basing upon which U.D. Case No. 8 of 2000 was registered and an inquiry was conducted. Having come to learn of recovery of the dead body, the father of Runu came and identified his daughter looking at her wearing apparels and other articles. After consulting with the well-wishers in the village, he lodged FIR on 27.05.2000 making allegations of torture and dowry death of his daughter by the accused persons.
Basing on such report, Kabisuryanagar P.S. Case No.55 of 2000 was registered and investigation was taken up. Upon completion of investigation, charge-sheet was submitted against the accused persons.
The accused persons took the plea of denial. Additionally, accused-Udaynath and Padmabati took the plea that Kanhu was all along staying in his father in-law’s house after marriage and not in their house at any point of time. Kanhu admitted the death of his wife (Runu).
To prove its case, prosecution examined 15 witnesses and exhibited 16 documents. Besides, 10 material objects were proved on its behalf. The defence, on the other hand, examined two witnesses.
Analyzing the evidence on record, the trial Court first took up for consideration the question whether the death of the deceased was homicidal or not. After considering the post-mortem report, testimony of the autopsy surgeon, chemical examination report and the evidence of the informant, the trial Court arrived at the finding that the death was homicidal in nature, as the possibility of death by drowning or poisoning was completely ruled out. The trial Court then took note of the incriminating circumstances arising from the evidence against accused-Kanhu to the effect that the deceased had left home with Kanhu on 19.05.2000, which was clearly proved and she never returned. The accused had absconded from his village after the occurrence and gave no explanation whatsoever regarding the whereabouts of his wife after 19.05.2000. The trial Court also found that the prosecution had successfully proved the fact of concealment and recovery of gold articles belonging to the deceased from the house of Kanhu. All the above circumstances formed a complete chain which, according to the trial Court, pointed at the guilt of the accused. As regards the allegations of cruelty in connection with demand for dowry, the trial Court found that the charges were not established from the evidence. On such findings, accused-Kanhu was convicted under Sections 302/201 of IPC and sentenced as aforesaid, while the other accused persons were acquitted of the charges.
Heard Miss Samapika Mishra, learned counsel for the accused-appellant and Mr. Debaraj Mohanty, learned Addl. Government Advocate for the State.
Assailing the impugned judgment, Miss Mishra has advanced the following grounds;-
Prosecution could not conclusively prove that death of the deceased was homicidal in nature and therefore, conviction for murder is fundamentally wrong.
Last seen theory, relied upon by the prosecution and accepted by the trial Court is a weak piece of evidence and could not have formed the basis for holding the appellant guilty.
The evidence relating to recovery of gold chain and ring at the instance of the accused is not conclusive at all.
There is no evidence to show any motive of the accused to kill his wife. Rather, the evidence shows that they had normal relationship as the deceased willfully accompanied him to witness the Thakurani Yatra.
Per contra, Mr. Debaraj Mohanty would argue that the ocular, medical and scientific evidence adduced in the case clearly proved that the death was homicidal in nature. It is also proved that the deceased was last seen with the accused and no one had seen her thereafter. The accused was therefore, obliged to explain what transpired thereafter, which he failed to do. The conduct of the accused in absconding from the village shows his guilty mind. The gold articles belonging to the deceased were recovered from the house of the accused, which were proved to have been worn by her at the time she left home with the accused. The marriage between the accused and the deceased was not a happy one, which gives rise to the motive to kill her. According to Mr. Mohanty, therefore, there is a complete chain of circumstances conclusively proving the guilt of the accused.
This is a case which rests on circumstantial evidence. Several circumstances have been put forth by the prosecution and accepted by the trial Court, which are said to be incriminating enough to point the finger of guilt unerringly at the accused. Law relating to circumstantial evidence can be succinctly summarized as follows:-
A conviction can be recorded in such a case only if all the links in the chain are complete, pointing to the guilt of the accused and that the hypothesis of innocence is negated. Courts are called upon to adopt a cautious approach while appreciating circumstantial evidence. Reference in this regard may be had to the case of Sharad Birdhichand Sarda v. State of Maharashtra1. Keeping the above principle in mind, we shall now proceed to analyze the evidence on record in light of the rival contentions raised before us.
The first point that demands our attention is the nature of death. It has been vehemently argued by Miss Mishra that the death of the deceased was never proved to be homicidal and therefore, the entire prosecution case must fall to the ground. It is true that in a case of murder the primary finding has to be that the death was homicidal and not suicidal, accidental or natural. In the instant case, the dead body of the deceased was found floating in a nearby river at the village. It was in a state of absolute decomposition with almost all internal organs of the body missing. We may refer to the evidence of the autopsy surgeon (P.W.11), who proved the post-mortem report. He described the dead body as follows: -
“2.During P.M. examination it was found that the body was highly decomposed and almost scalatonised and dismembered. All the structures of the neck including, muscles, vessels and nerves, wind pipe and food pipe were found missing so also all the internal organs, such as, the brain, heart, lungs liver, spleen kidney and intestines were also found missing. In the absence of any ante-mortem injuries or about any disease and deformity on the available parts of the body, the cause of death was kept reserved pending diatom test and chemical examination of bones and nails.
3.A diatom test is conducted to exclude possibility of drowing. As no diatom was detected, possibility of death due to drowning was excluded. In my opinion death was within one to two weeks at the time of my examination.”
As already seen, death by drowning has been ruled out. The chemical examination report vide Exhibit-10 prepared by the Forensic Science Laboratory, Bhubaneswar ruled out the presence of any metallic poison. Thus, death by poisoning was also ruled out. In any case, the very absence of all internal organs militates against the possibility of the person having committed suicide. Therefore, the only inference available to be drawn is that the death was homicidal in nature, having been caused by another person and the dead body being thrown to the pond. We may briefly observe that absence of all the internal organs, as deposed by the Doctor, can have its own story and, in any case, points strongly towards the possibility that someone else was responsible for the death. We are, therefore, not inclined to accept the argument of Miss Mishra in this regard and hold that the trial Court committed no error in holding that the death of the deceased was homicidal in nature.
As regards the last-seen theory put forth by the prosecution, it is the clear and consistent evidence of the informant (P.W.6), father of the deceased, that on 19.05.2000, the accused came and took his wife (deceased) to Boirani for witnessing Thakurani Yatra. His evidence is corroborated by P.Ws. 4, 5 and 10. We have carefully perused the evidence of these witnesses and find nothing inconsistent or implausible so as not to rely on them. Most importantly, the auto-rickshaw driver being examined as P.W.8 and who is to be treated as an independent witness, clearly deposed that he had taken the accused and the deceased in his auto-rickshaw to Sunaripada at about 8 p.m. on the date of occurrence. Due to traffic, the police did not allow further movement for which the accused and the deceased got down. He was extensively cross-examined by defence, but we find nothing to discredit his sworn testimony. We thus find that the last-seen theory is also clearly proved.
Under such circumstances, the burden shifts to the accused to explain as to what happened to the deceased thereafter. Of course, here the standard of proof would not be as rigorous as that for the prosecution but then the accused is required to offer a plausible explanation more so as the deceased was none other than his wife. As noted by the trial Court, the accused failed to give any explanation whatsoever to the questions put to him particularly under Serial Nos.10, 11, 12 and 15 during his examination under Section 313 Cr.P.C. He has simply stated that the allegations were false. This is, therefore, a strong circumstance against him.
The difficulty in identifying the precise cause of death and the dead body having been found in a highly decomposed and fragmented condition with almost all the internal organs missing may have its own story, which was perhaps not properly taken care of during investigation. However, this Court cannot shut its eyes to the prosecution case founded on the last-seen theory pointing towards the guilt of the accused. Merely because the dead body was found in a highly decomposed and fragmented condition with the internal organs missing, making it difficult to ascertain the cause of death, the accused cannot be let off on that score alone. The medical and scientific evidence has conclusively ruled out the possibility of death by drowning or poisoning. The surrounding circumstances also do not admit of any reasonable hypothesis of accidental or suicidal death. Thus, all possible causes of death, other than homicide, stand effectively excluded. It is in this backdrop that the last-seen circumstance assumes significance. The prosecution has successfully established that the deceased was last seen in the exclusive company of the accused when he took her from the house of P.W.6 on 19.05.2000 to witness the Thakurani Yatra. Thereafter, she was never seen and within a few days her dead body was recovered from the river in a highly decomposed condition. The facts as to what transpired after the deceased left in the company of the accused were especially within the knowledge of the accused, who has failed to offer any explanation whatsoever either during investigation or in his examination under Section 313 Cr.P.C. Therefore, this Court deems it proper to uphold the prosecution case. As rightly held by the trial Court, relying upon the judgment of the Supreme Court in Rama Nand and Others v. State of Himachal Pradesh2, wherein it was held that homicidal death can be established on the basis of circumstantial evidence alone, provided such circumstances are of a clinching and definitive character leading unerringly to that conclusion.
In the facts of the present case, once the possibilities of accidental death, suicide, drowning and poisoning stands ruled out and the deceased is proved to have been last seen in the exclusive company of the accused, who alone has failed to explain the circumstances in which she met her death, the only inference that can reasonably be drawn is that the deceased met with a homicidal death at the hands of the accused. The last-seen circumstance read conjointly with the other incriminating circumstances established by the prosecution, points unerringly towards the guilt of the accused and excludes every hypothesis of his innocence.
Coming to the conduct of the accused, we find that despite the fact that the deceased was missing from 19.05.2000 till recovery of her dead body four days later, that is, on 23.05.2000, the accused had absconded. Secondly, despite being the husband, he exhibited no interest or anxiety to trace out the whereabouts of his missing wife, if at all she was missing. Going by normal human conduct the husband in such a case would be greatly perturbed and would inform all his relatives and acquaintances and also the police. The difference in conduct of the accused assumes significance in the facts of the present case.
In the case of Ponnusamy v. State of T.N.3, the Supreme Court, while considering the conduct of a husband held as follows:
“21.We have to consider the factual background of the present case in the light of the relationship between the parties. If his wife was found missing, ordinarily, the husband would search for her. If she has died in an unnatural situation when she was in his company, he is expected to offer an explanation therefor. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him.”
In the present case, the accused not only failed to make any effort to trace his wife or inform his relatives or the police regarding her disappearance, but has also failed to offer any explanation whatsoever as to what transpired after he left with the deceased on 19.05.2000. Such complete indifference on his part is wholly inconsistent with the normal conduct expected of a husband and assumes considerable incriminating significance
It is also well settled that mere abscondence, by itself, is not conclusive of guilt, as even an innocent person may, out of fear or panic, avoid the investigating agency. Nevertheless, abscondence is a relevant circumstance under Section 8 of the Evidence Act, reflecting the conduct of the accused, and is required to be considered along with the other evidence on record. Reference in this regard may be had to the judgment of the Supreme Court in Chetan V. State of Karnataka4, wherein it was held as follows:
"It is trite that mere absconding by itself does not constitute a guilty mind as even an innocent man may feel panicky and may seek to evade the police when wrongly suspected of being involved as an instinct of self-preservation But the act of abscondence is certainly a relevant piece of evidence to be considered along with other evidence and is a conduct under Section 8 of the Evidence Act, 1872, which points to his guilty mind The needle of suspicion gets strengthened by the Act"
Therefore, applying the aforesaid principle to the instant case, the silence of the accused can only imply his complicity.
To reiterate at the cost of repetition, we find that in evidence adduced by the prosecution it is proved that the accused in one evening approached PW-8, the auto-driver and hired his auto to take him and his wife Runu to Boirani Thakurani Yatra at Boirani that is celebrated once in 12 years. During that period the accused Appellant used to stay in the house of his father-in-law (informant, PW-6) with his wife as Runu who left her matrimonial home and started residing in her parental house. Pw-8 knew the informant PWP-6 and Runu, daughter of PW-6 as they are from the same village. Accordingly, on 19.05.2000 around 08:00 p.m. PW-8 came to the house of PW-6 with his auto rickshaw from where both the accused-appellant as well as his wife Runu boarded the auto of PW.8 and they proceeded towards Boirani. Due to traffic rush police did not allow the said auto driven by PW-8 towards Boirani from village Sunaripada. As such, the accused-Appellant and his wife Runu got down from the auto of PW-8 at village Sunaripada itself. But neither the accused-Appellant nor his wife Runu returned to the home of PW-6 on the said night and thereafter. Though search was made by PW-6, father of Runu, neither she nor her husband accused-Appellant could be traced out. Four days later on 23.05.2000, a dead body was found floating in river Dhanei at village Sunaripada. Prosecution by its evidence of PW-8 established that the deceased Runu was seen alive in company of the accused on the night of 19.05.2000 and four days later Runu's dead body was recovered from a local river on 23.05.2000. The accused-Appellant Kanhu Charan Nahak did not satisfactorily explain about missing of Runu, the deceased, as well as recovery of her dead body while he was duly enquired into by the learned trial Court under Section-313 Cr.P.C.
From the evidence it is clear that the deceased Runu was last seen alive on 19.05.2000 evening with the accused-Appellant Kanhu Charan Nahak. Law is well settled that though Section-106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt but it is applicable where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding guilt of the accused where certain facts that are particularly within the knowledge of the accused, he fails to offer an explanation which might drive the Court to draw a different inference. In the case in hand, the accused-Appellant did not give any plausible explanation regarding missing of his wife Runu as well as about her death that too without having vital internal organs of her body.
Another important circumstance that surfaces from the evidence is that certain gold ornaments worn by the deceased at the time of her departure from her father’s house were recovered from the house of the accused, from an almirah, at his instance while he was in police custody. No explanation whatsoever has been offered as to how the gold ornaments came to be present in the house of the accused, even though the deceased was not residing there. We have perused the evidence of the witnesses to such discovery, namely, P.Ws.7 & 12 and find nothing therein to disbelieve them.
As regards motive, Miss Mishra, learned counsel for the appellant, has argued that the accused and the deceased had a love marriage and the informant, P.W. 6, admitted in cross examination that they had normal relationship, for which he allowed his daughter to accompany the accused to witness the Thakurani Yatra. According to Miss Mishra, therefore, prosecution could not prove any motive on the part of the accused to kill his wife.
We are not impressed with the above argument because as is well settled, motive is known only to the offender and prosecution cannot be expected to prove what exactly weighed in the mind of the offender while committing the crime. It is also well-settled that the motive cannot always be proved but even in the absence of proof of motive, conviction can be recorded if there is evidence otherwise to show the guilt of the accused.
Thus, while we reject the arguments made on behalf of the appellant, we, on an independent analysis of the evidence, also find the following incriminating circumstances arising against the accused from the evidence.
The accused had left with the deceased on 19.05.2000 from the house of P.W. 6 for seeing Boirani Jatra and thereafter the deceased did not return.
The accused was absconding from the village.
The accused gave no explanation whatsoever as to what happened after he had left with his wife to witness Thakurani Yatra.
The dead body found floating in the river Dhanei on 23.05.2000 belonged to the deceased Ranu.
The death of Runu was not due to drowning, even though it was found in the river and it was also not due to any metallic poison.
The death of the deceased had occurred within one to two weeks to the post-mortem examination i.e. 24.05.2000
The gold chain and gold ring which were worn by the deceased at the time of her departure from the house of her father with the accused for the Jatra were recovered from the house of the accused pursuant to disclosure statement made him.
All the above circumstances, according to us, form a complete chain pointing unerringly at the guilt of the accused. We may also point out that none of these circumstances are consistent with the hypothesis of innocence in favour of the accused.
For the foregoing reasons therefore, we find no infirmity much less illegality, in the findings of the trial Court or in the order of conviction and sentence passed in the case so as to be persuaded to interfere.
In the result, the appeal fails and is therefore, dismissed. The accused being on bail be taken into custody forthwith for serving the remaining part of sentence. His bail bond be cancelled.