Nisamani Pati vs The State

P.K. Mohanti, J.—The Appellant, a police constable has been convicted u/s 302, Indian Penal Code and sentenced to undergo imprisonment fur life for having committed the murder of a Police Havildar named Major Chittaranjan Kushal. The incident took place on the night between 15th and 16th of March of 1975 in the Government quarters at the Appellant in the second floor or a flat in the Reserve Police Line at Cuttack.

The prosecution case was that on the night of occurrence at about 10 p.m. while the deceased was going to the stop to bring some batel he saw the Appellant standing near flat No. 1 at the Reserve Police Line. On seeing the deceased the Appellant called him to his quarters to take batel. Due to their Intimacy the deceased went to the quarters of the Appellant. On their arrival, the Appellant asked his wife Brajamohini to serve cold drink to the deceased. The wife of the Appellant served cold drink to the deceased mixing some liquid substance after which the deceased felt uneasy. Thereafter the Appellant assaulted (he deceased by means of a katari causing multiple injuries on different parts at his body. The shriek raised by the deceased attached the attention of the police officials residing in the quarter nearby. P.W. 1. 3, 6, 7, and 8 came to the scene of occurrence and the Appellant is alleged to have admitted before them that he had killed the deceased. They opened the door of the Appellant and found the deceased lying in the entrance room with bleeding injuries on his person. He was removed to the Medical College Hospital for treatment. P.W. 11 the officer-in-charge of Mangalabag police station received in telephonic massage at 3 a.m. on 16-3-1975 that some trouble was going on In the Reserve Police line and hastened to the spot. F.I.R. was lodged at 3 30 a.m. by P.W. 1 Prahallad Praharaj, a steno Sub. Inspector of Police who was residing in a Government quarters behind the quarters of the appellate intervened by another flat. Than P.W. 11 proceeded to the Hospital where the deceased made a dying declaration before him Implicating the Appellant as his assailant . The deceased died at 8.10 a.m. on 16-3-1975. Than P.W. 11 held inquest over the dead body and despatched it for post mortem examination. The Appellant was arrested at 11 a.m. on 16-3-1975 P.W. 11 seized from the person of the Appellant a napkin (M.O. I) which was stained with blood. He also seized nine broken pieces of glass bangles lying in the balcony of the quarters of the Appellants two other bottle (M.Os. VI and VII) with liquid substance from inside the health in the quarters of the Appellant, two other bottles (M.Os. VI and VII, an iron rod some portion of the cemented floor stained with blood and some other articles including a knife, an aluminium glass (M.O. I) and a small bottle (M.O. X), as per the seizure list. Ext 9. On 20-3-1975 the blood stained articles were sent for Chemical examination. On 22-3-1975 the Police Registration Officer (P.W. 13) took the finger prints of all the ten fingers of the two hands of the wife of the Appellant and her palm prints and sent the same to the Director of Flinger. Print Bureau for examination and comparison with the finger prints appearing on the two bottles (M.Os. IV and V). After due investigation charge sheet was submitted against the Appellant on 31-12-1975.

At the trial, the Appellant denied the charge and pleaded alibi. Alternatively he took the plea of right of private defence of the person at his wife. His version before the trial Court was that on the night of occurrence he was on duty near a Circus show and at about 2.15 a.m. he returned to his quarters. He saw a large gathering on the field near his quarters and his wife lying there with bleeding from her person. His wife was telling that the deceased committed rape on bar and that whatever she had done had been done rightly. She was behaving like a mad person.

He denied having made any extra-judicial confession before the witnesses and stated that he did not know anything as to how the deceased received the Injuries on his person being asked about the presence of injuries on his person, the Appellant stated that he was assaulted by three police officers namely Garnaik Babu, Mallik Babu and Sachi Babu in presence of the Superintendent of Police and the Additional Superintendent of Police at the Mangalabag Police station.

That the death of the deceased was homicidal is amply borne out by the medical evidence. The doctor (P.W. 5) who performed post mortem examination over the dead body of the deceased found as many as 16 incised wounds and three lacerated wounds on different parts of the body and opined that death was due to shock and haemorrhage as a result of the combined effect of the multiple injuries. He also opined that incised wounds could be caused by a sharp cutting instrument and the three lacerated wounds might have been caused by falling or coming in contact with the projecting edges of a cot or similar other object like a chair or table.

The crucial question for consideration is whether the Appellant is the author of the murder. There is no direct evidence of any eye witness about the factum of murder. The prosecution case rests on circumstantial evidence which presents difficulties.

The learned Sessions Judge disbelieved the evidence about the dying declaration of the deceased and the extrajudicial confession of the Appellant. Having been taken through the statements of the witnesses we find it difficult to place any raliance upon the evidence regarding the dying declaration and the extra judicial confession. The order of conviction is based mainly on the following circumstances:

(1) The occurrence took place in the quarters of the Appellant;

(2) Immediately after the occurrence the Appellant was found present in his quarters with a katari in his hand and with stains of blood on his body.

(3) His wearing napkin (M.O. I) was stained with blood which on serological test, was found to be of human origin.

(4) Presence of injuries on the person of the Appellant and absence of any reasonable explanation on his part with regard to the same.

(5) The Appellant bore grudge against the deceased as the latter had committed rape on his writ on an earlier occasion.

(6) In false plea of alibi taken by the Appellant and the false explanation given by him regarding the presence of injuries on his person.

(7) Ethycol alcohol has detected in the bottles seized from the quarters of the Appellant and in the viscera, urine and blood of the deceased.

(8) The finger print appearing on the bottles (M.Os. IV and V) was found totally with speciman print of the right middle finger of the wife of the Appellant.

In order to base a conviction on circumstantial evidence there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistence with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. To put it in the time honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis."

In Chandmal and Anr. v. State of Rajasthan S.C.C. Cri 120, their lordships of the Supreme Court laid down as follows:

It is well settled that when a case rests entirely on care circumstantial evidence such evidence must satisfy three tests Firstly, the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. Secondly these circumstance should be of a definite tendency unerringly pointing towards the guilty of the accused. Thirdly, the circumstance, taken cumulatively should from a chain so complete that there is an escape from the conclusion that within all human probability the crime was committed by the accused and none also. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis have that of the accused''s guilt.

As we shall presently discuss the circumstances relied upon by the trial Court failed to satisfy the above, tests.

It is undeniable that the incident took place in the residential quarters of the Appellant. But this circumstance by itself is not of a determinative character to fix the guilt on the Appellant, particularly when the prosecution has come up with a case that both the Appellant and his wife were present in the quarters at the time of the incident. It must, therefore, be established that the wife of the Appellant had no hand in the commission of the crime and the Appellant alone was responsible for the same. The Appellant''s version was that in the night of occurrence he was on duty near a Circus show and that he returned to his quarters at about 2:15 a.m. and found a large gathering near his house. His wife was lying on a field near his house with bleeding from her person and she was saying that the deceased committed rape on her and whatever she had done had been done rightly. The Appellant''s plea that he was absent from his quarters at the relevant time gains support from the statements of p. ws. 1 and 3. According to P.W. 1 when he first went near the-place of occurrence he did not see the Appellant. P.W. 3 also stated that when he first went near the place of occurrence he did not find the Appellant there and the Appellant''s wife told him that the deceased had entered their house. The Appellant''s wife has not been examined in the case. The Appellant has led evidence to show that since the time of occurrence his wife has been behaving like a mad person. The Appellant''s plea that his wife caused the injuries or the deceased when the latter attempted to commit rape on her cannot be lightly brushed aside. The doctor (P.W. 4) found injuries on the person of the Appellant''s wife and opined as follows:

If the injured Brajamohini Pati had been caught by another person who had been attempting to commit rape the injuries found by me could be caused by coming in contact with the finger nails of the person attacking her.

Some broken pieces of glass bangles being stained with blood were found lying at the spot and were seized by the investigating officer. It may be that the glass bangles of the Appellant''s wife were broken in course of her struggle with the deceased. The saree and the saya worn by the Appellant''s wife were seized by the police as they were stained with blood. On chemical examination and serological tesi, human blood has been detected in the stains. In view of all these facts and circumstances the possibility of the Appellant''s wife having caused the injuries on the deceased in course of a struggle cannot be excluded.

The next circumstantial evidence on which considerable reliance has been placed is that immediately after the occurrence the Appellant was found to be standing near his quarters with a katari in his hand and with stains of blood on his body.

P.Ws. 6 and 8 are the two witnesses who stated to have seen a katari in the hand of the Appellant. The katari has not been recovered. There IS nothing on the record as to what happened to the katari and why it was not seized by the Police.

P.W. 6 is a Gun Mechanic of the Police department and in the night of occurrence he was on duty in the Police Armoury near the Police Reserve Line. His evidence is replace with contradictions and improbabilities. He stated that on hearing the shriek of somebody requesting the Appellant not to kill him he went to the quarters of the Appellant and found that the Appellant was holding a katari and the deceased was standing in the entrance room of the Appellant with injuries on his person. He also stated to have found a Traffic constable standing there. Without asking any of them about what had happened he went to P.W. 7 the Reserve Inspector and informed him about the occurrence. He did not disclose during his examination by the police that he had heard the shriek of somebody requesting the Appellant not to kill him. He did not also disclose that he had a seen the deceased in that night. His statement before the Police was that wife of the Appellant was present in her quarters and was crying. But he went back upon this statement and deposed before the Court that he had not seen the wife of the Appellant in that night. His evidence that he heard the shriek of somebody requesting the Appellant not to kill him is highly incredible. It is difficult to believe that the persons residing in the flat where the incident took place were not aroused by the shriek of the deceased. In this state of evidence, it is not possible to place any reliance on the evidence of P.W. 6 that he had seen the Appellant holding a Katari.

P.W. 8 is a Sub-Inspector of Police. His evidence was that on hearing a hulla at about 1 a.m. be went to the quarters of the Appellant and heard somebody asking the Appellant as to what had happened. But he could not say who that person was. He also stated that he had asked the Appellant about the occurrence and found him holding a Katari at that time. His evidence does not show that he made any attempt to see the deceased or to seize the Katari from the band of the Appellant. None of the other witnesses who visited the spot soon after the incident claimed to have seen a Katari in the hands of the Appellant. In our opinion this circumstance has not been firmly established by the prosecution.

The circumstance that the Appellant''s body was stained with blood was deposed to by P.W. 1 alone. This witness stated in his examination-in-chief that there were stains of blood through out the body of the Appellant. But in cross examination he changed the version and stated that he had seen some very small stains of blood on the person of the Appellant. None of the other witnesses who went to the spot after the incident claimed to have seen stains of blood on the Appellant''s body. The investigating officer (P.W. 11) who arrested the Appellant at 11 a.m. on the day to following the occurrence did not also state that he had seen stains of blood on the person of the Appellant. But the doctor (P.W. 5) who examined the injuries on the person of the Appellant on 16-3-1975 at about 3 p.m. stated that he had noticed some reddish brown stains on the right side of the check and right side of the nose of the Appellant and that he had collected the same on a filter paper for chemical analysis. The Chemical Examiner found blood in the stains collected on the filter paper, but the Serologist could not give any opinion about the origin. If actually the Appellant''s body was stained with blood in course of the incident it would not have escaped the notice of the other witnesses who visited the spot and saw the Appellant after the incident.

Human blood was detected by the Serologist on the napkin (M.O. I) which is alleged to have been seized from the Appellant. This circumstance is hardly sufficient to connect the Appellant with the crime. There is no material on the record as to whether the blood marks on the napkin were such that by their size shape and location they indicated that they came from same other person in course of an attack. The doctor found injuries on the Appellant and his wife. The Appellant''s version was that his napkin was stained with blood while he was carrying his wife to the hospital. It may be that the Appellant''s napkin was stained with blood coming out of his own injury or the injury of his wife.

Now coming to the fourth circumstance, the minor and insignificant injuries found on the person of the Appellant could be caused in may ways and not necessarily by having taken part in a fight. It is difficult to say where and how those injuries were caused. The Appellant''s explanation was that those injuries were caused by the assault committed on him by the police officers. It is not worthy that neither the investigating officer nor the other witnesses stated to have marked the injuries on the person of the Appellant when they first saw him after the incident. The doctor (P.W. 5) who examined the Appellant about four hours after the time of arrest stated to have found an incised wound an abrasion and a lacerated wound on the person of the Appellant. The Appellant''s contention was that after his arrest he was assaulted by the police officers at the MangalaBag police station. Assuming that the Appellant''s plea of alibi and the explanation given by him regarding the presence of injuries on his person are false, this circumstances, in our opinion is not of a definite tendency and has little evidentiary value.

In order to substantiate the first circumstance pertaining to the motive for the murder prosecution depended upon the evidence of P.W. 1 alone, The evidence of this witness was that soon after the occurrence the Appellant told him that he had been informed by his wife that on an earlier occasion the deceased had committed rape on her. This is denied by the Appellant. Whatever may be-the weight to be given to the evidence of P.W. 1 we are of the opinion that the mere existence of motive is by itself not an incriminating circumstance. It can be regarded only as one of the factors to corroborate the other direct evidence or very strong circumstantial evidence in the case. At best it raises a strong suspicion that the accused committed the crime. But suspicion however strong cannot take the place of positive proof. In that view of the matter the alleged motive in this case does not really provide any assistance to the prosecution case.

The next circumstance relied upon by the prosecution is that ethycol alcohol was detected in the bottles seized from the quarters of the Appellant and in the viscera, urine and blood of the deceased and that the finger prints appearing on the bottles were found to tally with the specimen print of the right middle finger of the Appellant''s wife. From this circumstance the learned Sessions Judge drew an inference that ethycol alcohol had been given to the deceased in the house of the Appellant for drinking. In our opinion, the facts proved do not necessarily lead to such an inference. Even if it is assumed that the bottles bore the finger prints of the Appellant''s wife, then also it would not inexorably and unmistakably lead to the conclusion that ethycol alcohol had been given to the deceased at the house of the Appellant for drinking unless it was proved further that the bottles or the glass seized from the Appellant''s house bore the finger prints of the deceased and that no ethycol alcohol was found in the house of the deceased. Definite proof of this link is lacking in this case.

In the ultimate analysis we hold that the circumstances relied upon by the prosecution do not unerringly connect the appellan.t with the crime.

An unsatisfactory feature of the case is that none of the persons who were occupying quarters in the that where the incident took place has been examined by the prosecution. It appears from the evidence of the investigating officer (P.W. 11) that one Gobardhan Samal an assistant of the officer of the Inspector General of Police was occupying quarter in front of the quarters of the Appellant at the time of occurrence and his statement had been recorded during investigation of the case. He was cited as a witness in the charge sheet and was present in Court during trial. But for unexplained reasons he was withheld from the box.

Having regard to all the circumstances of the case, the alleged complicity of the Appellant in the crime does not appear to be free from doubt. It is not possible to hold that the circumstantial evidence is consistent only with the hypothesis that none else but the Appellant is the author of the murder.

Even assuming that the Appellant was responsible for the injuries on the deceased, we are inclined to hold that he is protected by the night of private defence of the body of his wife. The Appellant''s version seems to be highly probable and very likely. In the absence of prosecution evidence to show how exactly the injuries on the deceased the Appellant and his wife came to be caused and in the absence of any explanation about the broken glass bangles referred to above, there is no reason why the defence case which finds corroboration from the circumstantial evidence be not relied upon. It is very likely that the deceased came in drunken condition at the dead of night and assaulted the Appellant''s wife for commission of rape. On seeing this culpable and reprehensible conduct of the deceased there was every justification on the part of the Appellant to cause injuries on the deceased. On this view of the case the action of the Appellant, in all probability is covered by clause ''Thirdly'' of Section 100, Indian Penal Code. The right of private defence of the body of his wife extended to the voluntary causing of death as the offence which occasioned the exercise of the right was an assault with the intention of committing rape and in our opinion the Appellant did not exceed the limit laid down in Section 99, Indian Penal Code.

The result, therefore, is that the appeal is allowed and the Appellant is acquitted of the charge u/s 302, Indian Penal Code. We direct his release forthwith.

S. Acharya, J.

I agree.