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2010 Supreme(Ori) 600
2011 (I) OLR — 263
L. MOHAPATRA AND C.R. DASH, JJ.
Jail Criminal Appeal No. 101 of 2005
From the judgment and order of sentence dated 18.04.2005 and 20.04.2005 respectively passed by Sri S.K.Pattnaik, learned Addl. Sessions Judge, Titilagarh in Sessions Case No. 114/37 of 2003, under Section 302, I.P.C.
Sri Dillip Kumbhar... Appellant
Versus
State of Orissa... Respondent
Decided on 18th November, 2010.
For Appellant:Miss Deepali Mohapatra, Advocate
For Respondent:Addl. Govt. Advocate
Headnote:1. INDIAN PENAL CODE, 1860 - Sec. 302 - Conviction under - Appeal - Appreciation of evidence - Case based on circumstantial evidence - Contradictions and discrepancies in evidence of P.Ws. 21 and 19 so far as the time of disclosure is concerned and so far as the place of concealment of the stone is concerned - Evidence of both P.Ws. 19 and 21 also casts a shadow of doubt as to whether the appellant was, in fact in custody when he made the alleged disclosure statement - Discrepancy in the evidence of independent witnesses and the I.O. regarding the place and time of the seizure and non-identification of the same by a competent witness, there
arise a doubt as to whether any gold ornaments were seized from the possession of the appellant - Motive exclusively on the part of the appellant cannot be held to have been proved - Held, all the circumstances taken together do not form the chain unerringly pointing at the guilt of the appellant - Conviction set aside.
(Paras - 8 to 15)
2. EVIDENCE - Circumstantial evidence - As held by Apex Court - Circumstantial evidence can be reasonably made the basis of an accused person's conviction, if it is of such a character that it is wholly inconsistent with the innocence of the accused and consistent only with his guilt.
If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. But, in applying the principle, it is necessary to distinguish between the facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In accordance with proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in appreciation of evidence in respect of proof of those basic or primary facts, there is no scope for application of the doctrine of benefit of doubts. (Para - 7)
3. CRIMINAL TRIAL - Only such conduct can be held to be incriminatory, which has no reasonable explanation except the hypothesis of guilt of the accused - Reasonable explanation of conduct of the accused is to be considered in his favour even though not proved. (Para - 15)
JUDGMENT
1.The trial Court found the appellant guilty of the offence of uxoricide, convicted him under Section 302, I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.5,000/- (five thousand), in default, to suffer R.I. for six months more. The said judgment dated 18.04.2005 and order of sentence dated 20.04.2005 passed by learned Addl. Sessions Judge, Titilagarh in Sessions Case No. 114/37 of 2003 are impugned in this appeal.
2.The occurrence happened at about 5.30 p.m. on 08.04.2003 at Sunari jungle near Rengali situated under Saintala P.S. in the district of Bolangir. The appellant is a resident of village Talapadar. The village of the deceased is Ichhapada. marriage between the deceased and the appellant was solemnized on 11.03.2003. On 08.04.2003 the appellant is alleged to have arranged a phone call to the telephone of his co-villager Bishnu Prasad Meher (P.W.15) to reach a false message to his deceased wife to the effect that her father was ill. On the same day, on the pretext of taking his wife to see her ailing father, the appellant at about 5.30 p.m. left his village Talapadar along with his wife. They proceeded to Ichhapada on a bicycle through Sunari jungle. On their way to Ichhapada, the appellant persuaded his wife to give her ornaments to him, feigning apprehension of their being robbed on the way through the jungle. While passing through the jungle, the appellant is alleged to have murdered his wife by assaulting her with a knife and a stone. After committing murder, the appellant concealed the weapons of offence at a little distance from the spot and proceeded to the nearby village Rengali. There at Rengali he informed some of the villagers that some unknown culprits robbed the gold ornaments from the person of his wife and committed her murder inside Sunari jungle. Same facts the appellant intimated to his father-in-law from the telephone of Mahadev Sahu (P.W.18) of Rengali. Getting such message, appellant’s father-in-law (P.W.1), brother-in-law (P.W.2) along with their co-villagers P.Ws. 3, 4, 9 and 11 came to Rengali. The appellant took them from village Rengali to the spot, where the deceased Alaka was found lying dead in a pool of blood. Suspecting some foul play, P.W.1, the father of the deceased, lodged report at the police station. On the basis of the report, the case was registered, and after completion of the investigation, charge-sheet was filed against the appellant implicating him in the offence punishable under Section 302, I.P.C.
3.The defence plea is one of complete denial of the charge. The appellant in his statement recorded under Section 313, Cr.P.C. has taken the specific plea that while he and his wife were proceeding to Ichhapada, it was already evening in Sunari jungle; four unknown persons chased them to attack; he and his wife started running, but his wife in her running state fell down, whereas he managed to escape and concealed himself at a safe distance inside the jungle after about half an hour he heard the cry of his wife and then he came to the spot he saw his wife laying in a pool of blood; he lifted her body to find that she was already dead and thereafter he came to village Rengali and informed the villagers about the incident. He also informed such facts to his father-in-law and others, as stated by him.
4.Prosecution examined 21 witnesses to prove the charge. P.Ws. 1 and 2 are respectively the father and brother of the deceased. P.Ws. 3, 4, 9 and 11 are their co-villagers. P.Ws. 7 and 10 are the witnesses to the inquest over the dead body. P.Ws. 6, 7, 8, 18 and 19 are the villagers of Rengali. P.Ws. 12, 13 and 14 are the official witnesses, before whom nail clippings of the appellant were collected and seized. P.W.15 is the co-villager of the appellant. P.W.5 is the Medical Officer, who conducted the post-mortem over the dead body of the deceased and P.W.16 is another Medical Officer, who examined the appellant on police requisition. P.Ws. 17, 20 and
