NEHERU SATNAMI Vs. STATE OF ODISHA

JUDGEMENT

(1.) The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dtd. 28/2/2018 passed by the learned Sessions Judge, Nuapada in S.T. Case No.70 of 2014 arising out of C.T. Case No.227 of 2014 corresponding to Jonk P.S. Case No.75 of 2014 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Nuapada. The Appellant (accused) thereunder has been convicted for commission of offence under Sec. 302/201 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life with fine of Rs.10,000.00 (Rupees Ten Thousand) in default to undergo rigorous imprisonment for a period of one year for the offence under Sec. 302 of the I.P.C.; and undergo rigorous imprisonment for three years and fine of Rs.2,000.00 (Rupees Two Thousand) in default to suffer rigorous imprisonment for two months for commission of the offence under Sec. 201 of the I.P.C. with the stipualtions that the substantive sentences would run concurrently and in the event of realization of fine, a sum of Rs.5,000.00(Rupees Five Thousand) be paid to the children of the deceased as compensation.

(2.) The prosecution case, is that on 23/4/2014 evening, the accused namely, Neheru Satnami, assaulted his wife Malati Satnami and caused her death and it was also stated that the accused after committing the murder of his wife was digging an earth for burying her dead body on the next morning. One Hemlal Satnami (P.W.-8-Informant), who is the son of the paternal uncle of this accused, lodged a written report with the Inspector-in-Charge (I.I.C.) of Police, Beltukri Police Station on 24/4/2014 afternoon. The report as above being received from P.W.8, the I.I.C. (P.W.16) entered the fact in the Station Diary Book maintained at the Police Station and then submitted a report for formal registration of the case to the Officer-in-Charge (O.I.C.) of Jonk Police Station which is the jurisdictional police station. The Investigating Officer (I.O.-P.W.16) then examined the Informant (P.W.8) and deputed police constables to guard the dead body by issuing command certificate under Ext.11. He (P.W.16) then submitted requisition to the Sub-Collector, Nuapada for deputation of an Executive Magistrate during exhumation/inquest of the dead body. Few other witnesses were also examined. The I.O. (P.W.16) then visited the spot and prepared two spot maps; one in respect of the area where the dead body was found and the other one, the house of the accused. He prepared the spot maps under Ext.12 and Ext.13. The dead body was exhumed in presence of the Executive Magistrate (P.W.4). He (P.W.16) also seized some blood stained earth and sample earth from the burial spot as well as the house and seized the same under seizure list (Ext1). The dead body was then sent for post mortem examination by issuance of necessary requisition. The wearing apparels of the deceased were seized on production by the police personnel, who had accompanied the dead body for post mortem examination. The incriminating articles were sent for chemical examination. The accused being arrested was forwarded to custody through court. 4. On completion of investigation, the I.O. (P.W.16) submitted the Final Form placing the accused to face the trial for commission of offence under Sec. 302/201, I.P.C. 5. Learned S.D.J.M., Nuapada having received the Final Form as above took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial against this accused and two others commenced by framing the charge for the above offences as against them. 6. In the Trial, the prosecution in total has examined sixteen (16) witnesses. As already stated, the Informant who is the son of the paternal uncle of the accused and had lodged the F.I.R. (Ext.5) scribed by P.W.2 is P.W.8. The Executive Magistrate who was present during inquest has come to the witness box as P.W.4. P.W.3, P.W.5, P.W.6, P.W.7, P.W.14 and P.W.15 are the independent witnesses and the Doctor who had conducted the autopsy over the dead body of the deceased is P.W.11 whereas the I.O. is P.W.16. 7. The prosecution, besides tendering the evidence through the above witnesses, has also proved several documents which are Ext.1 to Ext.20. Out of those, the important are F.I.R. ( Ext.5), the inquest report (Ext.4), Post Mortem Examination Report (Ext.8), spot maps (Ext.12 and Ext.13). The Chemical Examiner's Report has been admitted in evidence and marked Ext.18. 8. The accused being called upon has not adduced any evidence in support of his plea of denial and false implication. 9. The Trial Court finding the prosecution case to be based on circumstantial evidence has culled out the circumstances emerging from the evidence on record. It then having analyzed the evidence has come to a conclusion that all those circumstances taken together make the chain complete in every respect to arrive at an irresistible conclusion that within all human probabilities, it is the accused, who has committed the murder of his wife Malati. The accused thus having been convicted, has been sentenced as afore-stated. 10. Mrs. Sonita Biswal, learned counsel for the Appellant (accused) taking us through each of the circumstances pointed out by the Trial Court submitted that those are not at all incriminating in unerringly pointing the guilt at the accused. She further submitted that those circumstance even being cumulatively viewed are not enough to conclude that the chain of circumstances is so complete that there is no escape but to conclude the guilt of the accused. She further submitted that the prosecution in this case having not established the foundational facts, the Trial Court has gone wrong in holding that there being discharge of initial burden of proof by the prosecution, the same stood shifted upon the shoulder of the accused, who has failed to elbow the same. She contended that merely because of the relationship between the accused and the deceased as the husband and wife and the fact that they were staying together when the prosecution evidence is not clear, cogent and acceptable in recoding the finding that the dead body of the deceased was recovered at the instance of this accused and that the deceased was done to death in the house of the accused, the finding of guilt against the accused as has been returned by the Trial Court cannot be sustained. 11. Mr. P.K. Mohanty, learned counsel for the State while supporting the judgment of conviction and order of sentence submitted that on the face of the admitted position emerging in evidence that the accused and the deceased being husband and wife were residing under one roof when the nature of death of the deceased has been found to be homicidal and the dead body was exhumed in presence of the accused, who had led the police and other witnesses to that place, the Trial Court is right in holding the accused guilty of committing the murder of his wife since there came no explanation, whatsoever, from the side of the accused. 12. Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also gone through the depositions of the witnesses P.W.1 to P.W.16 and have perused the documents admitted in evidence from the side of the prosecution and marked Ext.1 to Ext.20. 13. The prosecution case is based on circumstantial evidence. It is the settled position of law that in order to sustain the conviction on the basis of circumstantial evidence all the links of chain of circumstances must be complete and thus there being the complete chain, there should remain no escape from the conclusion that within all human probability the offence was committed by the accused and none else. Bearing the settled principles of law in mind, when we go through the evidence let in by the prosecution in the case at hand, we find that the relationship between the accused and the deceased as husband and wife stands and it is also admitted that they were residing together in the house at Kuliabandha. The Doctor, who had conducted the autopsy over the dead body of the deceased (P.W.11) has stated in clear terms that the death of Malati was due to head injury with extra and sub-dural hematoma. His evidence is that he had noted a laceration injury of the size 1.5 inch x 0.05 inch. on left lateral forehead with hematoma under the tissue and depressed fracture on skull bone. He too had found the extra and sub-dural hematoma. This finding of P.W.11 what we find have not been questioned, which he had also noted in his report (Ext.8) had not been challenged by the defence in the Trial and so also the evidence that the injuries found on the dead body of the deceased was sufficient in ordinary course of nature to cause the death. Thus it is also established from the evidence that the death of Malati was homicidal in nature. 14. Now comes the question as to whether the evidence on record is sufficient to hold that Malati was done to death in the house of the accused. The Informant is the brother of the accused and he had lodged the F.I.R. (Ext.5) in stating to have heard from the neighbours of the accused that it was seen by them that the accused had been continuously assaulting his wife and then digging the earth to bury the dead body of his wife. During Trial, he has, however, not stated anything in support of the F.I.R. narrations. He simply states to have gone to the place getting the news from his cousin and there only learnt that the dead body was buried by the accused. The prosecution having cross-examined this witness with the permission of the court has simply drawn his attention to the previous statement made by him before the Investigating Officer (P.W.16) which he has denied. When such is the evidence of P.W.8, the evidence of P.W.6 that he heard from this P.W.8 that accused had killed his wife was trying to bury the dead body is of no significance and falls short of acceptance. When it has been stated by P.W.14 that on 23/4/2014 at 7 p.m., he had seen the accused holding the hairs of the deceased chasing to kill her and confined her in his house and killed her, during cross-examination, he has admitted to have never been examined by the police in course of investigation in further stating that although police had come to examine him; that had not been materialized. Even what he has stated during Trial to have seen the accused holding hairs of the deceased chasing her to kill, confining her in the house and killing her, he has admitted during cross-examination to have not stated so before the police. Therefore, the evidence of P.W.14, who came to depose in court after about three years and eight months for the first time is extremely unsafe to be relied upon. P.W.15 the other witness although has not supported the prosecution case has stated that the accused had buried the dead body of the deceased in the cultivable land under occupation of his father. He, however, has stated that the accused and his wife were residing in the house. But he has also stated to have never been examined by the police in course of investigation. Therefore, we do not find the evidence of the prosecution to be satisfactory to say that in the night of occurrence the accused and the deceased were seen together in the house. Simply because of their relationship and the fact that they used to reside under one roof, such presumption that in that relevant night they too were in the house cannot be straight way drawn to conclusively hold that in the very night that were together when none other witness has been examined from the side of the prosecution and no one so states. 15. Coming to the other important circumstance that the accused had buried the dead body of the deceased. It is said that the accused led the police and others to the place where he had buried the dead body of his wife and there after digging, the dead body was recovered. P.W.4 is the witness in that regard. He has stated that in his presence the accused led the police, village gentries including himself to the place where he had buried the dead body of his wife and in his presence earth was dug and dead body of Malati was recovered. But it is his evidence that when he arrived at the spot, he found some police personnel and co-villagers. He is not stating as to which is the place but as it appears he thereby means saying to be the spot. When he says that accused led the police and others to the place where he had buried the dead body of his wife, he is silent as to whether before that the accused had given any statement that if he would be taken to the place which was within his knowledge, he would give recovery of the dead body. The I.O. (P.W.16) after stating to have submitted the requisition to the Sub-Collector for deputation of an Executive Magistrate (P.W.4) during exhumation/inquest over the dead body says to have gone to the village and he says to have prepared the spot map of the place where the dead body was buried and the house of the accused, which have been admitted in evidence and marked Ext.12 and Ext.13. So, it comes out from the evidence of I.O. (P.W.16) that he by then had ascertained the place where the dead body of Malati had been buried. It is only thereafter he states to have examined the accused and others. So, he was having the knowledge as to where the dead body has been buried when he arrived in the village after receiving the F.I.R. It is his further evidence that the Executive Magistrate (P.W.4) arrived thereafter and the body was exhumed in his presence and then he held inquest over the same. So, his evidence is not to the effect that it is the accused who had led him and other witnesses to the place where the dead body had been buried. The Executive Magistrate (P.W.4) when states that on his arrival he found police personnel and villagers to have kept the accused and deceased with them and the accused thereafter led the police and others to the place where he had buried the dead body of his wife, that part of his evidence is completely inconsistent with the evidence of P.W.16. Therefore, we are of the view that the prosecution has not established the circumstance that it is the accused, who had led the police and others to the place wherefrom the dead body of his wife was recovered beyond reasonable doubt. No other evidence is forthcoming as to whether the accused was seen digging the earth of that land or to have carried the dead body from his house to that place or to be throwing loose earth or earth lumps over that place. Thus, we are lead to hold that the circumstances as have emerged in evidence being linked up do not complete the chain, leading to an irresistible conclusion regarding the guilt of the accused leaving no other hypothesis except that. Therefore, we are constrained to conclude that the prosecution has failed to establish the charge against this accused through circumstantial evidence and reasonable doubt. Accordingly, in our considered view, the judgment of conviction and order of sentence holding the accused guilty for commission of offence under Sec. 302/201, I.P.C. cannot be sustained. 16. In the result, the Appeal stands allowed. The judgment of conviction and the order of sentence dtd. 28/2/2018 passed by the learned Sessions Judge, Nuapada in S.T. Case No.70 of 2014 are hereby set aside. The accused, Neheru Satnami, be set at liberty forthwith if his detention is not so required in connection with any other case.