IMPORTANT POINTS
If existence of a fact is arrived at from attending circumstances it can be said to be proved.
One cannot be convicted if evidence of alleged eye witness is fraught with inherent improbabilities and incongruities and the inference of motive is also flawed.

JUDGMENT

AMITAVA ROY, J.

The appellant, successively convicted by both the courts below along with one Pravati Behera under Section 302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred to as “IPC/Code”) along with Section 34 of the Code is in appeal seeking remedial intervention.

2. Whereas the Trial Court by the judgment and order dated 26.1.2001, as stated hereinbefore, convicted the appellant and the co-accused Pravati Behera, the High Court by the verdict impugned, though has affirmed the conviction of both, had left the co-accused at liberty to move an application for premature release from the jail and for appropriate orders under Sections 433 and 433-A of the Code of Criminal Procedure, 1973 (for short, hereinafter to be referred to as “Cr.P.C.”). Noticeably, the appellant and co-accused had been charged along with Section 302 IPC for the offence under Section 203 as well but were acquitted thereof by the Trial Court. Though an appeal was preferred by the State against such acquittal, the High Court has affirmed their exoneration as well.

3. We have heard Mr. Krishnan Venugopal, learned senior counsel for the appellant and Mr. Shibashish Misra for the respondent.

4. The prosecution case unfolds with a written information lodged by Premananda Behra (PW12) with the police on 20.2.2000, whereby the unnatural death of his brother Santosh Behera by hanging from the roof of a shed adjacent to his (deceased) house, was reported. In the course of the investigation, following the registration of said information, Niranjan Behera (PW1) disclosed to Daitari Behera (PW5) that the appellant along with the co-accused Pravati Behera had in the intervening night of 19/20.2.2000 murdered the deceased in his house and thereafter had suspended his dead body from the roof of the nearby shed. PW1 claimed to have witnessed the incident of murder. Following this information, the investigation took a different turn. The appellant and the co-accused were arrested and eventually, charge-sheet was laid against them.

5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan Behera (PW8) also came to the police station and reported that PW1 had disclosed to them as well to have witnessed the appellant and the co-accused committing murder of Santosh Behera (deceased) in his house and thereafter, hanging the dead body from the roof of the nearby shed. The investigating officer in the process of investigation, amongst others caused the inquest of the dead body to be made, prepared a spot map Ex. P-11, effected seizure, amongst others inter alia of a rope and also got the post-mortem of the dead body done before submitting the charge-sheet as mentioned hereinabove. The formal FIR was registered on 26.2.2000 under Sections 302/203 read with Section 34 IPC.

6. At the trial, the accused persons were charged under Sections 302/203/34 IPC. They having denied the allegations, were made to stand trial. The prosecution examined as many as 16 witnesses, and after recording the statements of the accused persons under Section 313 Cr.P.C. and on a consideration of the materials on record, the Trial Court convicted the appellant and co-accused under Section 302 IPC read with Section 34 of the Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 100/-, in default to suffer R.I. for 30 days.

7. In recording the conviction, the Trial Court laid utmost emphasis on the testimony of PW1, who apart from narrating the incident of murder, also deposed about the extra-marital relationship between the accused persons, though they were related as nephew and aunt. Reliance was also placed on the evidence of Musimani Behera (PW3), the mother of the deceased, who, perceived to have hinted at well to this unacceptable liaison. The Trial Court noted the opinion of Dr. Rupabhanu Mishra (PW11), who conducted the post-mortem examination that the cause of death of Santosh Behera was asphyxia as a result of constriction of the neck and not