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Judgment
Sashikanta Mishra, J.
The appellants before us faced trial in the Court of learned First Additional Sessions Judge, Puri in S.T. Case No.9/59 of 2000 for committing murder of one Hari Mishra. By judgment passed on 30.07.2002 by the said Cout, they were convicted under Sections 302/34 of IPC and sentenced to imprisonment for life and to pay fine of Rs. 1,000/- each, in default to undergo further R.I. for six months.
The prosecution case, briefly stated is as follows: -
The deceased Hari Mishra was the son of Shankar Mishra of Balighat Mouza in Puri district. On 19.07.1999 at about 8 A.M., accused Madhu Sahu came to his house with some antisocial elements and informed the deceased that his (Madhu’s) mother was asking for him and took him with him. Shankar searched for his son for a long time and at about 3.00 P.M., he heard that his son was being treated in the DHH, Puri in a half-burnt condition. He rushed to the hospital and came to know that Madhu along with his brother, mother and sister assaulted the deceased and after pouring kerosene on his body, set it on fire with the object of killing him. Fortunately, the deceased was rescued in a half-burnt condition and admitted to the hospital for treatment. As his condition deteriorated, he was shifted to the hospital at Cuttack, where, he was fighting for his life. Stating that he is a poor man dependent on his son’s earnings, Shankar Mishra came to Puri and lodged FIR before Sea Beach Police Station. Accordingly, P.S. Case No.110 of 1999 was registered under Sections 307/34 of IPC followed by investigation. In course of investigation, it was discovered that the deceased had married the daughter of accused Shakuntala (and sister of the other accused persons) and a girl child was born out of such union. The informant was however, not happy with such marriage as he wanted to get his son married to a Brahmin girl. Accordingly, he got his son married to one Sasmita, daughter of Markanda Dash of village Balabhadrapur on 17.07.1999. For the above reason, the accused persons took the deceased to their house on 19.07.1999 and caused burnt injury on him. The deceased succumbed to his injury during treatment at Cuttack on 24.07.1999. Further steps were taken in investigation, whereby complicity of the accused persons was established. Accordingly, charge-sheet was submitted against all of them under Sections 302/34 of IPC.
The defence plea is of denial.
To prove its case, prosecution examined twelve witnesses and exhibited five documents. Defence, on the other hand, examined one witness and exhibited one document.
The trial Court, after analyzing the evidence, first found that the oral and medical evidence established that the death of the deceased was homicidal in nature resulting from burn injuries. As to the authorship of the crime, the trial Court observed that the case of the prosecution was based on circumstantial evidence and particularly, on the last seen theory and dying declaration of the deceased. As regards the last seen theory, basing on the evidence of the informant P.W.6, his wife P.W. 7 and daughter P.W.8, the trial Court accepted the prosecution case that the deceased was called by accused Madhu and Maku from their house and was not seen thereafter till he was discovered in a half-burnt condition at the DHH. As regards the dying declaration, the trial Court observed that the same was orally given by the deceased before P.Ws. 6, 7 & 8 while being treated at DHH. The defence objections regarding acceptability of such dying declaration were not accepted by the trial Court. It further found that the accused persons had sufficient motive to kill the deceased as, despite marriage with their daughter (and sister), he married another girl two days prior to the occurrence. Basically, on such findings, the trial Court accepted the prosecution case and convicted the accused persons and sentenced them as already stated hereinbefore.
Heard Mr. J.R. Dash, learned counsel for the appellants and Mr. Debraj Mohanty, learned Additional Government Advocate for the State.
Mr. Dash assails the impugned judgment by raising the following grounds: -
The last seen theory relied upon by the trial Court is not proved at all as from the evidence, it cannot be conclusively said that the deceased was last seen in the company and had left home with the accused persons.
The so-called dying declaration cannot be accepted in view of the clear medical evidence that the deceased having sustained 70% burns was not in a fit state of mind to speak.
Apart from the above, Mr. Dash would argue that defence raised a plausible plea that the deceased having been forced against his will to marry the daughter of Markanda Dash had committed suicide by self-immolation. The trial Court did not accept such evidence without justified reason.
Per contra, Mr. Mohanty would argue that if the evidence of P.Ws. 6, 7 and 8 are read conjointly, it would reveal that, first, accused Maku came to the house of the deceased and took him by stating that his mother was asking for him. After some time accused Madhu came and inquired about the deceased and at that time, he threatened the mother and sister of the deceased that if they had concealed the deceased, he would be set on fire. Mr. Mohanty further argues that, according to the doctor, a person with 70% burns may or may not be able to speak. It does not mean that such a person cannot speak at all. Further, an oral dying declaration can also be accepted. That apart, the police recovered burnt materials from the house of the accused person. The motive was also clearly established in that the deceased was killed because of his marriage to another girl despite having relationship with the daughter and sister of the accused persons, with whom he had a child.
Having considered the rival contentions noted above, we have analyzed the evidence on record independently. While the prosecution asserts that the death of the deceased was homicidal in nature basically on the evidence of the two-autopsy surgeons, P.Ws.9 and 10 and the treating Doctor, P.W. 11, yet defence has argued that the deceased had committed suicide. D.W.1 explicitly said so in his evidence before the Court. Both the autopsy surgeons, P.Ws.9 and 10 found the dead body with 70% burns. They opined that the burn injuries were ante-mortem in nature and possibly caused by heat like flame. They further stated that death was due to shock resulting from burn injuries and its complications. They have not expressly stated as to if death was homicidal in nature or not. The answer to this would depend on other evidence. According to the defence, the deceased was married to Sasmita Sahu, daughter of accused-Sakuntala and sister of other accused persons. The marriage was registered. The registration receipt of such marriage was proved through D.W.1 and exhibited. The couple had a girl child aged about 3 years. The parents of the deceased had desire to solemnize the second marriage of the deceased with a Brahmin girl. The deceased agreed to this and committed suicide.
Leaving aside the defence plea for a moment, we focused our attention on the two most incriminating circumstances projected by prosecution, namely, the last-seen theory and dying declaration. We have chosen to do so as we would be in a better position to make a comparative analysis of the prosecution case and the defence plea referred above. Significantly, not a whisper of suggestion regarding the so-called suicide was given to any of the prosecution witness, particularly the close family members of the deceased, namely, P.Ws. 6, 7 and 8. The accused persons have also not stated so in their examination under Section 313 of Cr.P.C.
As already stated, prosecution seeks to prove the last-seen theory through the versions of P.Ws. 6, 7 and 8. It has been argued before us that all the three versions are inconsistent and contradictory inasmuch as, according to P.W.6, both Maku and Madhu came to his house to call his son. But, according to P.Ws. 7 and 8, Maku had come first and after about half an hour, Madhu came. We are not much impressed with this argument for the reason that P.W.6 was admittedly not at home and stated whatever he had heard from his wife (P.W.7). Now, P.Ws. 7 and 8 have both stated about the visit of Maku and subsequently of Madhu. P.W. 6 stated that both of them came. This is entirely consistent with the version of P.Ws. 7 and 8. None of them had seen the deceased thereafter, till he was found in a half -burnt condition in the hospital. If it is accepted, and there is no reason not to, that the deceased left home in the morning on the date of occurrence and he was discovered in the hospital in the afternoon of the same day after 4 P.M., it can be held that the proximity of time was not very long. The claim that the deceased was taken to the house of the accused persons where the incident is said to have occurred is sought to be proved by the evidence relating to seizure of burnt materials by the I.O. from the house of the accused persons vide Exhibit-1. It has not been suggested as to why the close relations of deceased would falsely implicate the accused persons.
The above circumstance assumes significance when considered in the background that the deceased, after leaving his house in the company of accused Maku and Madhu was not seen by his family members thereafter and was subsequently found in a half-burnt condition.
The 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 excluding the hypothesis of innocence. Courts are, therefore, required to adopt a cautious approach while appreciating circumstantial evidence. Reference in this regard may be had to the judgment of the Supreme Court in the case of Sharad Birdi Chand Sarda v. State of Maharashtra1.
Once these circumstances are established, the failure of the accused persons to offer any plausible explanation as to what happened to the deceased after he was taken away by them becomes an additional link in the chain of circumstances. The principle that the unexplained disappearance of a person from the exclusive or proximate custody or company of an accused may constitute an additional incriminating circumstance has been reiterated by the Supreme Court in the case of Debojit Pankika Charaideo Sonari Vs. The State Of Assam2. At the same time, such circumstance cannot by itself substitute the prosecution's burden of establishing its case. In the present case, however, the prosecution has independently established the circumstances of the deceased having been taken away by accused Maku and Madhu, his disappearance thereafter, his subsequent discovery in a half-burnt condition and the recovery of burnt materials from the house of the accused persons. The failure of the accused persons to furnish any satisfactory explanation, therefore, operates as an additional link supporting the prosecution case. We are, therefore, inclined to accept the evidence as laid and hold that the deceased was indeed last seen in the company of at least accused Maku and Madhu.
Coming to the other argument regarding dying declaration, the prosecution case is that the deceased orally stated before P.Ws. 6, 7 and 8 while he was being treated at the hospital that the accused persons had tied him to a pole and set fire to his body after pouring kerosene. It has been argued that such statement cannot be treated as dying declaration as it was not recorded. We do not accept the argument as oral dying declaration has been held to be admissible, provided it is supported by other evidence. The important thing to be noted is that the Court, before accepting such statement, must be satisfied that the deceased was in a fit state of mind while making the statement. It has been argued that, according to the autopsy surgeons P.Ws. 9 and 10, a person with 70% burn injury can talk or may not talk depending on the burn injury and its condition. The treating Doctor, P.W.11 stated that with 70% burn injury, the victim may not be in a position to speak. We do not accept such contention as it is not an inflexible rule of law that a person with 70% burn injuries would not be in a fit state of mind. In fact, there is no hard and fast rule that percentage of burn is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. In other words, the percentage of burn alone will not determine the probability or otherwise of making the dying declaration. Reference may be had to the judgment of the Supreme Court in the case of P.V. Radhakrishna vrs. State of Karnataka3. Even in case of 100% burns, it cannot be said that the victim was incapable of making a statement. Reference may be had to the judgment of the Supreme Court in the case of Pursuttom Chapar vrs. State (NCT of Delhi)4.
Coming to the evidence on record, we find that P.W.11 merely stated that a person with 70% burnt injuries ‘may not’ be able to speak. He never said that such a person would definitely not be able to speak. He has merely hinted at a possibility. As already held, his family members (P.Ws. 6, 7 and 8) cannot be expected to state falsehood or invent such a story only to falsely implicate the accused persons.
The third aspect that strikes our mind is the evidence relating to motive. Defence itself admits that despite having a relationship with the daughter (and sister) of the accused persons with a girl child, the deceased married another girl, two days prior to the occurrence. This strongly suggests that the accused persons were unhappy with the above conduct of the deceased.
It is argued that there being no conclusive material to show that the accused persons acted in concert to kill the deceased, their conviction with the aid of Section 34 of IPC is unwarranted. It is further argued that since only some persons came to the house of the deceased, implicating all of them cannot be accepted. We are conscious of the fact that evidence shows that only Maku and Madhu had gone to the house of the deceased and brought him to their house. It was only given out that their mother (accused-Sakuntala) was asking for the deceased. Secondly, if we accept the oral dying declaration in toto, we find that he had referred to all the accused persons as having set fire to him by pouring kerosene.
Thus, the evidence read as a whole leaves no manner of doubt that at least Maku and Madhu being aggrieved because of the deceased marrying another girl despite his relationship with their sister, called him to their house, assaulted him and thereafter set his body to fire by pouring kerosene. The role, if any played by the other two accused persons is shrouded with doubts, the benefit of which ought to be given to them. Having held as above, we reject the theory of suicide altogether. We must not forget that there is also evidence of certain burnt articles being recovered from the house of the accused persons, where the occurrence took place which can only add to the chain of incriminating circumstances against them. Why should the deceased attempt to commit suicide, if at all, in the house of the accused persons is a question that has not even been attempted to be answered by the defence. However, the expression ‘all the accused persons’ appears to be broad and a sweeping generalization, particularly in the absence of any specific evidence to connect Shakuntala and Jadu with the occurrence. We have already held that there is consistent evidence of Maku and Madhu coming to the house of the deceased and searching for him. While Maku is said to have taken the deceased with him, Madhu came shortly thereafter and searched for the deceased. Not finding him, Madhu threatened to burn him alive if he was found to have been concealed by his family members. P.W.7 has referred to ‘some other persons’ accompanying Maku as well as Madhu to the house of the deceased, but in the absence of any evidence as to their identities, no conclusive view can be taken against them. For the same reason, the statement of the deceased in the hospital that ‘the accused persons’ had assaulted him, poured kerosene on his body and set him on fire, in the absence of any specific evidence, cannot be extended to include Shakuntala and Jadu.
Reading of the impugned judgment reveals that the trial Court has correctly analyzed and interpreted the evidence on record to be satisfied that the prosecution case in so far as it relates to Maku and Madhu was fully established. For the reason indicated, we see no justification for interference by us save and except to the extent that the case against Shakuntala and Jadu is not free from reasonable doubts.
For the foregoing reasons therefore, the appeal is allowed in part. The impugned judgment of conviction and sentence, insofar as it relates to accused-appellants Maku@ Makunda Sahu (Appellant no.2) and Madhu Sahu (Appellant no. 4) is confirmed. Their bail bonds be cancelled and they be taken into custody forthwith for serving remaining part of their sentence. The impugned judgment and sentence passed in respect of accused-Shakuntala Sahu (Appellant no.1) and Jadu Sahu (Appellant no. 3) is hereby set aside. They being on bail, their bail bonds be discharged.
Manash Ranjan Pathak, J. I agree.