Pramod Naik & Anr. vs State Of Orissa

Sashikanta Mishra, J.

The appellants faced trial in Sessions Case No. 6 of 2001 before the learned Additional Sessions Judge, Bhanjanagar-Aska, Bhanjanagar for committing the murder of Khadal Naik. By judgment dated 07.09.2002, they were convicted under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life and under Section 201 read with Section 34 of the I.P.C. to undergo rigorous imprisonment for two years.

Prosecution case, briefly stated, is as follows.

On the evening of 01.04.2000 at 7:30PM, while returning from Kusapalli Chhak after buying snuff, the neighbour of the deceased, Trinath Naik (PW-5) saw the accused persons, namely, Pramod Naik and Basanta Naik assaulting the deceased, Khadal Naik, by means of Tangi, Kati and Badi on the Masani Sankha Bridge. He informed the wife of the deceased, Kumari Naik (PW-8), the informant, who along with other persons of the village went to the spot and noticed a trail of blood but did not find the deceased. She informed the police and with them went back to the spot and found the dead body of the deceased near date palm bushes in the land of one, Narayan Naik.

The S.I. of Jagannathprasad Outpost took up investigation after the F.I.R. lodged by the informant at the Outpost was forwarded to Buguda P.S. by the Officer-in-Charge. During investigation, inquest was held over the dead body, blood-stained earth, sample earth was seized and sent for chemical and serological examination, spot map was prepared, witnesses were examined, one of the alleged weapons of offence was seized and the body was sent for postmortem. Upon completion of investigation, chargesheet was submitted against the appellants for the offence punishable u/s 302 and 201 of IPC read with section-34 of IPC.

The plea of the accused persons was of complete denial. It was further pleaded that, owing to previous enmity between the parties, the wife of the deceased had falsely implicated them in the present case.

To prove its case, prosecution examined ten witnesses and exhibited thirteen documents. Defence, on the other hand, examined six witnesses and exhibited 8 documents.

After analysing the evidence on record, the trial Court held that the prosecution was able to establish the charges framed against the accused persons. Relying upon the evidence of P.W.5, who was held to be a truthful eye-witness to the occurrence, as well as taking into regard the previous enmity between the accused persons and the deceased, the learned Trial Court convicted the appellants u/s 302 of IPC. As regards the offence under Section 201 I.P.C., the learned Trial Court took note of the evidence that the place of occurrence near the bridge of Masani Sankha was different from the place where the dead body was recovered under the bushes in the land of Narayan Naik, and that blood was seized from both places. The Court further held that the accused had removed and concealed the dead body to avoid detection and thereby attempted to conceal evidence of the murder. Accordingly, the learned Trial Court convicted the accused persons u/s 302 and 201 read with Section 34 I.P.C. and sentenced them as stated hereinbefore.

Heard Mr. G.K. Nayak, learned counsel for the Appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

Mr. Nayak assails the impugned judgment of conviction on the following grounds: -

ii) PW-5 had not stated before the I.O. nor before the Magistrate that the deceased was walking 7 to 8 cubits ahead of him at the time of occurrence and the same was stated by him for the first time in Court. Thus, the presence of PW-5 at the place of occurrence is doubtful.

iii) As per the F.I.R. and the statements of PW-5, it was dark at the time of occurrence and PW-5, despite allegedly knowing the accused persons, asked them to disclose their names. This conduct, coupled with the fact that PW-5 claimed to have identified them thereafter, casts serious doubt on his prior acquaintance with the accused persons and his ability to identify them in the prevailing darkness.

iv) The alleged weapons of offence, namely, Kati and Tangi, have neither been seized nor produced by the prosecution. P.W.5 has also not given any particular description of the accused persons or stated as to what type of dress they were wearing.

vi) The learned trial court accepted the evidence of PW-5 and illegally rejected the evidence of the defence witnesses.

Per contra, Ms. Devi, would submit that the evidence of PW-5, the eyewitness, clearly establishes that the appellants assaulted the deceased with the weapons of offence near the Masani Sankha bridge and caused his death. She argues that the appellants had a clear motive for the same as they suspected that the deceased was practicing black magic and had caused the death of their family members, specifically, their mother and the daughter of one of the accused persons. She further submits that the subsequent recovery of the dead body near the palm bushes in the land of Narayan Naik and the confession of the accused Pramod Naik before the police establishes that the appellants attempted to conceal the body and thereby cause disappearance of evidence.

Before delving into the rival contentions, it would be apposite to take a look at the evidence on record independently. A bare reading of the evidence on record shows that PW-5 is the sole eyewitness to the occurrence and the other witnesses are post-occurrence witnesses. The I.O. seized the alleged weapon of offence, i.e. a Kati based on an alleged confession by the accused Pramod Naik while in police custody which was later sent for chemical examination. However, the chemical examination of the same was inconclusive and did not establish any connection between the seized weapon and the commission of the offence.

The evidence of PW-6, the doctor who conducted the post-mortem examination over the dead body, reveals that the death was homicidal in nature and caused due to severe hemorrhage from the injuries inflicted on vital parts of the body. The autopsy surgeon found as many as 5 incised wounds on the person of the deceased which are listed below:-

The nature and location of the injuries are broadly consistent with the account of PW-5 that the assailants assaulted the deceased on the neck and thereafter continued the assault.

The principal question that, therefore, arises for consideration is whether the persons who assaulted the deceased, as witnessed by PW-5, were the present accused persons. The defence has assailed the testimony of PW-5 on the ground of certain inconsistencies and contradictions. It is contended that while PW-5, in his statement recorded under Section 164 Cr.P.C., stated that accused Basant gave the first blow and thereafter accused Pramod assaulted the deceased, in his evidence before the Court he reversed the order. In our considered view, the discrepancy as to which of the two accused gave the first blow is not a material contradiction. PW-5 consistently attributed the assault upon the deceased to both the accused persons and minor discrepancy regarding the sequence of the assault, in the facts and circumstances of the case, cannot by itself render the testimony of PW-5 wholly unreliable.

It is submitted that the testimony of PW-5 cannot be accepted as he was related to the deceased. It is, however, pertinent to note that the accused persons and the deceased were cousins and PW-5 had married their sister. Thus, PW-5 was related to the accused persons as well as the deceased. His relationship with the deceased, by itself, therefore, cannot be a ground to discard his testimony.

The defence has further contended, based on the testimonies of DW-1, 2, 4 and 5 that PW-5 is a habitual offender and that he had previous enmity with the accused persons as they had allegedly assisted in his arrest in an earlier criminal case for the charge of theft, thus, credibility of his evidence is doubtful.

Law is well settled that enmity is a double-edged sword. It can be ground both for the assault as well as false implication. Reference in this context may be made in this regard to the decision of the Supreme Court in State of U.P. v. Kishan Chand, (2004) 7 SCC 629, where the following was held:-

In light of the above legal position the evidence of PW-5 cannot be disregarded in the present case merely on account of previous enmity.

Furthermore, an independent analysis of the evidence on record shows that accused Pramod Naik, while in police custody, made a statement pursuant to which police were led to the discovery of the alleged weapon of offence. The admissibility of such statement is confined to so much of the information supplied by the accused as distinctly relates to the fact thereby discovered. The statement of the accused that he had assaulted and killed the deceased and thereafter dragged and concealed the dead body, being confessional in nature, is not admissible except to the limited extent permissible under Section 27 of the Evidence Act.

Section 27 of the Evidence Act carves out a limited exception to the general rule of inadmissibility of a confession made to a police officer or while in police custody. The fact so discovered, including the place from which the object is recovered and the accused's knowledge thereof, may thereafter be considered as a relevant incriminating circumstance.

In State of Maharashtra v. Damu S/o Gopinath Shinde, (2000) 6 SCC 269, the Supreme Court, while explaining the scope of Section 27 of the Evidence Act, reiterated that the fact discovered includes the place from which the object was produced and the knowledge of the accused as to such place, provided the information supplied relates distinctly to the fact thereby discovered. The information admissible under Section 27, however, remains confined to that portion which distinctly relates to the fact thereby discovered.

In the present case, therefore, the confessional portion of the statement of accused Pramod Naik regarding his participation in the murder and his having dragged and concealed the dead body with the co-accused cannot be relied upon to establish his guilt. However, the fact that, pursuant to the information supplied by him, police were led to the place where the alleged weapon of offence had been concealed and from where it was recovered, as stated by PW-9, and his consequent knowledge of the place of concealment are relevant and hence, admissible u/s 27 of the Indian Evidence Act.

The said circumstance, however, is only corroborative in nature and has to be considered along with the substantive evidence of PW-5. The mere fact that the accused led the police to the place of concealment of the alleged weapon cannot, by itself, establish that he had participated in the murder. Nevertheless, the recovery pursuant to his disclosure, particularly when the weapon matched, at least broadly, the description given by PW-5, constitutes a circumstance which lends assurance to the testimony of PW-5. The evidentiary value of such recovery must, however, be assessed in the light of the fact that the chemical examination report does not conclusively connect the recovered articles with the commission of the offence.

The defence has also raised questions on the identification of the accused persons by PW-5 on the ground that the occurrence took place in darkness and that PW-5 had asked the assailants as to who they were. It is submitted that if PW-5 was acquainted with the accused persons, there was no reason for him to ask their names. However, the mere fact that PW-5 asked the assailants as to who they were cannot, in isolation, lead to the conclusion that he was incapable of identifying them. It is otherwise borne out from the evidence that it was dark and therefore, asking the identities of persons emerging from the bushes can be treated as a natural reaction.

We may refer to the evidence of PW-5 in this regard. In his examination before the court, PW-5 stated the following in paragraph-2:-

He further stated the following:

Thus, PW-5 has categorically stated before the Court that he identified the accused persons. The fact that the accused persons disclosed their names when PW-5 asked them as to who they were does not, by itself, negate his assertion that he identified them.

More importantly, PW-5 was related to the accused persons, as noticed hereinbefore, and therefore the possibility of prior acquaintance cannot be ruled out. The mere fact that he asked their names, particularly when the assailants had emerged from nearby bushes, cannot, by itself, render his identification inherently unreliable. The said circumstance, therefore, does not warrant rejection of his otherwise consistent testimony.

Finally, in the evidence before the court the defence witnesses have all deposed that PW-5 was not residing within the village Kushapali at the time of the occurrence but in an adjacent village. This does not by itself prove that he did not witness the occurrence on the given night. Moreover, the other point that the shop where PW-5 supposedly had gone to purchase groceries did not belong to Abhi Naik as deposed by PW-5 is not sufficient to disregard the evidence entirely when other independent evidence corroborates his testimony.

On an overall assessment of the evidence, we find that the testimony of PW-5, which has remained substantially consistent on the material aspect of the assault and the identity of the assailants, receives corroboration from the medical evidence regarding the nature and location of the injuries sustained by the deceased. The recovery of the alleged weapon pursuant to the information supplied by accused Pramod Naik, also lends corroboration to the testimony of PW-5. The evidence on record, taken together, therefore establishes beyond reasonable doubt that the appellants, in furtherance of their common intention, committed the murder of the deceased. The conviction under Section 302 read with Section 34 of the IPC is, accordingly, upheld.

We shall now consider the conviction of the appellants under Section 201 read with Section 34 of the IPC. The trial Court principally relied upon the evidence of the Investigating Officer that the dead body was recovered from behind the palm bushes, at a place different from the alleged place of occurrence, and that blood-stained earth was seized from both places. The Court further relied upon the evidence of PW-8 that when she, along with other villagers, went to the place of occurrence, the dead body was not found there, but a trail of blood was noticed and the dead body was subsequently found near the palm bushes in the land of Narayan Naik. It is the further case of the prosecution that during the alleged confession of accused Pramod Naik before the police he stated that he along with the co-accused after killing the deceased and dragged him by his legs to the palm tree bushes and threw the body inside to conceal it. However, as stated before, the portion of the statement relating to the accused's alleged participation in the murder and the removal and concealment of the dead body is confessional in nature and is inadmissible. There is no material on record to show that the disclosure made by the accused led to the discovery of the dead body or to the discovery of the fact that it had been concealed at the place from which it was recovered. Thus, the confession itself cannot be the basis for conviction u/s 201 of IPC.

The fact that the dead body was found at a place different from the alleged place of occurrence undoubtedly raises a suspicion that it may have been removed from the original place. However, suspicion, howsoever strong, cannot take the place of proof. The prosecution was required to establish, by admissible evidence, that it was the accused persons who caused the disappearance of the evidence of the offence and that they did so with the intention of screening themselves or the offender from legal punishment. Reference in regard may be made to the case of Hanuman Vs. State AIR 1994 SC 1307 where the supreme court held that in order to prove conviction u/s 201 it is essential to prove that accused either caused the disappearance of the evidence or gave false information with the knowledge that such offence has been committed and with the intention to screen the offender from legal punishment.

Thus, conviction u/s 302 by itself does not make conviction u/s 201 of IPC consequential without independent evidence proving the same. The evidence of PW-5 only establishes that he witnessed the accused persons assaulting the deceased at the place of occurrence; however, he did not witness them dragging the dead body away or concealing it in the palm bushes where it was subsequently recovered. None of the other post occurrence witnesses have stated anything regarding the same.

The only remaining argument relied upon by the prosecution in this regard is the statement allegedly made by accused Pramod Naik before the police which is not admissible as the body of the deceased as not found consequent to the information given by him.

Thus, while the circumstances on record may give rise to a suspicion that the dead body was removed from the place of occurrence and concealed elsewhere, there is no legally admissible evidence establishing that the appellants were responsible for such removal and concealment with the intention of screening the offender from legal punishment.

In the absence of other independent evidence, the mere fact that the dead body was recovered at a place different from the alleged place of occurrence cannot, by itself, sustain a conviction under Section 201 of the IPC.

For the foregoing reasons, therefore, we are satisfied that the prosecution has proved the charge u/s 302 read with section-34 of the IPC against the appellants beyond reasonable doubt but failed in doing so with regard to the charge u/s 201 read with section-34 of IPC. The impugned order of conviction and sentence dated 07.09.2002 of the learned trial court are hereby confirmed to the extent of the charge u/s 302 read with section 34 of IPC. However, the conviction and sentence u/s 201 read with section 34 of IPC are hereby set aside.

In the result, the appeal is partly allowed. The accused appellants being on bail pursuant to order dated 11.03.2008 of the appellate court, their bail bonds be cancelled and they be taken into custody.

Manash Ranjan Pathak, J. I agree.