Santosh Kumar Naik vs State Of Odisha

Sashikanta Mishra,J

The judgment passed by learned Adhoc Addl. Sessions Judge (F.T.), Keonjhar on 19th February, 2005 in S.T. Case No.13/12 of 2004 is under challenge in the present appeal whereby the Appellant was convicted under Section 302 of I.P.C. and sentenced to imprisonment for life.

The prosecution case, briefly stated, is that on 9th September, 2003 the Ward Member of village Namkani in the district of Keonjhar lodged a written report before the O.I.C of Telkoi P.S. stating that on that day at about 7.00 A.M. one Phula Naik (hereinafter referred to as the ‘deceased’) had been killed by her husband Santosh Naik (accused-appellant) by means of an axe and that being informed and requested by one Bira Bhadra Naik of his village, he informed the matter to Police. The written report was registered as Telkoi P.S. Case No.74/2003 and investigation was taken up.

Upon completion of investigation, charge sheet was submitted against the Appellant under Section 302 of I.P.C.

The defence plea, apart from denial, was that the deceased, who was suffering from brain malaria, fell down and died while she had gone to fetch water.

The prosecution examined 13 witnesses in support of its case and exhibited 15 documents apart from 1 material object being the weapon of offence. Defence, on the other hand, did not adduce any evidence, either oral or documentary.

Basing on the evidence of the autopsy surgeon (P.W.8), the court below first held that the death of the deceased was homicidal in nature. P.W.8 having noticed two lacerated injuries and a bruise on vital part of the body had opined that the said injuries were sufficient in the ordinary course of nature to cause death and that the same were also possible to be caused by the weapon of offence (axe) (M.O.1), seized during investigation.

As regards the author of the crime, the trial court noted that there were no eye witnesses to the occurrence and that the case was based entirely on circumstantial evidence.  In analyzing the evidence of the  prosecution  witnesses,  it  was  held  that  the following circumstances were proved.

(i) The accused was seen by P.Ws.5 and 10 to be running away immediately after the occurrence towards jungle through an unusual route.

(ii) The accused gave recovery of the weapon of offence (axe), which he had concealed after committing the crime.

(iii) In his examination under Section 313 of Cr.P.C. the accused was found to have falsely stated that his wife was suffering from brain malaria due to which she fell down and died while she had gone to fetch water from a village well carrying an aluminum container.

The trial court also held that the accused could not explain the presence of blood on the weapon of offence, which was recovered at his instance. On such findings, the accused was convicted and sentenced as already stated hereinbefore.

Heard Mr. C.R.Sahu, learned counsel for the Appellant and Ms. Samapika Mishra, learned Addl. Standing Counsel for the State.

Assailing the findings of the trial court Mr. Sahu would argue that there being no eye witnesses, the prosecution case can succeed only if a complete chain of circumstances can be established by the prosecution. He further argues that each of the circumstances must independently point at the guilt of the accused and must not admit of any other hypothesis. The evidence in the case at hand, according to Mr. Sahu, does not meet the above requirements. Elaborating his argument Mr. Sahu contends that only because the accused was seen to be running away cannot be treated as incriminating in nature in view of a plausible explanation being available to the effect that the villagers usually prefer to go by such route to attend call of nature. Secondly, the so called recovery of the weapon of offence at the instance of the accused cannot be said to have been proved in view of the variance in the statement of the witnesses to the so called recovery. Since there are no other incriminating circumstances, the so called false plea of the accused could not have been utilized to hold him guilty.

Per contra, Ms. Samapika Mishra, learned Addl. Standing Counsel, argues that when it is proved that the death of the deceased was homicidal in nature and the injuries found on her body were possible to be caused by the axe which was recovered at the instance of the accused, the same is a very important circumstance pointing at the guilt of the accused. She further argues that the accused had no reason to run away hurriedly from the village after the occurrence and such conduct can only show his culpability. Ms. Mishra further argues that once the accused is found to have given a false statement, the same further strengthens the case against him.

Admittedly, there are no eye witnesses to the occurrence. The trial court, as already stated, based its finding of guilt of the accused on three circumstances. Firstly, accordingly to P.Ws.5 and 10 the accused was seen running away towards the jungle. In cross-examination P.W.5 stated that the road on which the accused was running was not a normal road and that his movement was a little faster than normal. P.W.10 testified that he had seen the accused running away towards the jungle and that the route through which he was running away was not an ordinary path of walk by pedestrians. P.W.10 also states to have called him to know the reason as to why he was in a hurry but he did not respond. In cross-examination he stated that nobody is expected to be seen on the route on which the accused was running away because it was the extreme part of the cultivable lands.

Accepting the version of P.Ws.5 and 10 as above, we are unable to appreciate as to how this can be an incriminating circumstance against the accused particularly having regard to the admission of P.W.5 in cross-examination that the villagers visit the nearby canal through the said route in their daily life to attend call of nature. This runs contrary to the version of P.W.10 that no one is expected to be seen on the route. Therefore, even if it is accepted that the accused was seen running away towards the jungle on that route, it cannot only suggest that he was doing so as he had committed the crime.

The Appellant is said to have given recovery of the weapon of offence, which he had concealed, and his statement was recorded under Section 27 of the Indian Evidence Act. According to the I.O. (P.W.13), the axe was seized in presence of Paramananda Naik (P.W.3) and Charan Naik (P.W.7). P.W.3 stated that in course of interrogation by Police, the accused disclosed that after killing his wife he concealed the axe in a bush and that he led them to the place of concealment near the bush from where he gave recovery of the same. In cross-examination he says that the axe was lying near the house of the accused. P.W.7, on the other hand, stated that the place of concealment was in the nearby locality where the deceased was lying dead. Of course he also stated that the accused brought out the axe from under the bush and gave recovery of the same to Police. In cross-examination he stated that the place of concealment was a bush and the axe was not visible to outside. He also stated that the road alongside the bush is usually used by four to five families in the village to fetch water from the nearby well.

Thus, the exact place of concealment and recovery vis-à-vis the spot of occurrence remains shrouded with doubts inasmuch as, from the conjoint reading of the version of the I.O. and the two witnesses there is hardly any clarity as to the exact place from where the weapon of offence was recovered. To amplify, where exactly the bush was located, how far it was from the spot of occurrence and in which direction etc. are the particulars that are found wanting. Interestingly, P.W.7 states that the place of concealment was in the nearby locality where the deceased was lying dead in a house. Therefore, simply on the version of the witnesses that an axe was recovered from a bush at the instance of the accused is not of that significance to be taken note of in pointing the finger at the accused in relation to the commission of offence i.e. the authorship of the crime. According to P.W.2 the Police held inquest over the dead body. According to P.W.4 he found the deceased was lying near the road. According to P.W.6 (father of the deceased) he was informed by a village boy about the deceased and thereafter he brought the deceased to his house and she was dead by that time. So if the version of P.W.6 is to be believed the inquest ought to have been held in his house and therefore, the spot of concealment must be near to his house. Such is not the version of any of the witnesses. Therefore, the evidence relating to so called recovery of the weapon of offence also appears to be doubtful so as to be accepted as an incriminating circumstance.

The other circumstance relied upon by the court below is the false plea of the accused to the effect that his wife was suffering from brain malaria and had died because of fall while going to fetch water. Even assuming for a moment that the accused had falsely stated so, the same by itself would not be a substantive piece of evidence to bring home the charge against him. The false plea of the accused could have been considered had the other circumstances been proved beyond reasonable doubt in providing further assurance, but in the absence of the same, it by itself cannot have any relevance.

Law is well settled that in a case based on circumstantial evidence, each of the circumstances being proved beyond reasonable doubt in pointing the finger of guilt at the accused; those when cumulatively viewed must make the chain so complete that all the hypothesis other than the guilt of the accused stand ruled out.

In view of what has been discussed hereinbefore it can hardly be said that the circumstances projected by prosecution are adequate to establish the guilt of the accused. The Court below has not considered the above vital aspects surfacing in the evidence for which the impugned order of conviction is rendered vulnerable, thereby warranting interference. The Court below appears to have laid much emphasis on the so called conduct of the accused in staying at his aunt’s house at a different place when his wife was found dead in the village. It is not understood as to how this could be treated as an additional link relevant to the prosecution case because if the Court accepts that the accused was in his aunt’s house then the allegation that he killed his wife in the village again becomes doubtful.

For the foregoing reasons therefore, we are of the considered view that the impugned judgment cannot be sustained in the eye of law. Resultantly, the appeal is allowed. The impugned judgment of conviction and order of sentence are hereby set aside. The Appellant be set at liberty if not required to be detained in connection with any other case.

L.C.R. be sent back to the Court below forthwith.

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