The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No. 39 of 2007 State of Orissa …. Appellant Mr. Janmejaya Katikia, Addl. Govt. Advocate Harisebak Mishra and Another …. Respondents -versus- CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No.
Decision
ORDER 23.06.2023 05. 1. This is an appeal by the State against the judgment dated 28th August, 2004 passed by the Additional Sessions Judge, Sonepur in Sessions Case No.65/3 of 2004 arising out of G.R. Case No.93 of 2003. By the impugned judgment, the trial Court acquitted the two accused persons, who stood charged with committing the offence punishable under Section 302 read with Section 34 IPC for the murder of Manjulata Mishra, whom Respondent/accused No.1 (hereafter A-1) Harisebak Mishra had married on 5th March, 2003. The charge was that the two accused had strangulated her to death on 27th June, 2003 at about 6 p.m. and, thereafter caused the evidence to disappear by making it appear that she had committed suicide thereby further committing the offence punishable under Section 201 read with Section 34 IPC. 2. The case of the prosecution was that A-1 was having an illicit relationship with his own step mother (A-2) and this provided the immediate provocation for ill-will between the newly wedded wife Page 1 of 5 i.e. the deceased Manjulata Mishra and A-2. Further the case of prosecution was that soon after the death of the deceased, A-1 absconded and was able to be arrested by the police about eight days thereafter. The absconding of A-1 after the incident was projected by the prosecution as one important circumstance in the chain of circumstances, which the prosecution sought to prove against the accused. 3. The second circumstance was the medical evidence, which according to prosecution showed that the death was not suicidal, but homicidal as there were no ligature marks on the neck. The third circumstance relied upon was that the statement made by A-1 while in police custody leading to the recovery of the towel purportedly used to strangulate the deceased. As far as motive for the commission of the crime, the prosecution projected the alleged illicit relationship between the two accused. 4. On behalf of the prosecution, ten witnesses were examined and on behalf of the defence, one witness was examined. 5. In the impugned judgment, the trial Court examined the first circumstance of A-1 absconding soon after the occurrence. In this regard, the trial Court noted that according to P.W.1, they did not find A-1 in his house on the date of the occurrence and he did not return to the village till his apprehension by the police. Further, the Investigating Officer (P.W.10) also deposed that he searched for A- 1, but could not trace him and it was only on 10th July, 2003, on receipt of reliable information, that they were able to apprehend A- 1 at the Dunguripali bus stand. Page 2 of 5 6. However, the trial Court itself noticed that another prosecution witness Prahallad Gadtia (P.W.3) in his cross examination, suggested that A-1 was present in his house on the date of the occurrence, but absconded after he was called by the Gramrakhi on 27th June, 2003. 7. With the assistance of the learned Additional Government Advocate, this Court has carefully examined the deposition of P.W.3. Specific to the issue of the A-1 absconding, the relevant portions of the deposition of P.W.3 read as under: “6. Now I cannot say the contents of the inquest report. Police babu (some Nanda) scribed the inquest the report vide ext.1. I did not accompany bridegroom party while proceeding for the 2nd marriage of Hari. Similarly I had not witnessed the 1st marriage of accused Harisebak. I cannot say the date of the death of the 1st wife of accused Harisebak. Accused absconded as people gathered and I was called by Gram rakhi. I arrived at his house to find Manju lying dead on a cot on the verandah of her house. Accused was available at his house, but absconded as villagers went to call the Gramrakhi. I cannot say the date of arrest of accused Harisebak by police. It is true that after this occurrence police had not brought accused Hari to my village after this incident. I had not entered inside the house of a ccd.persons any time prior to this occurrence. I and accused were in talking terms. 7. Gramrakhi called me to P.S. intimating the direction of police to go there and accordingly I went there. The statement of accused was reduced into writing. Thana babu was present therein. Accused Hari was inside the lock up at that time. First police came to the house of the accused and recovered the gamucha (M.O.I.) and then returned back and there after statement of accused reduced into writing at P.S. vide Ext.3. It is not a fact that Page 3 of 5 nothing was seized in my presence, except lending of signature on plain paper and that I am deposing falsely.” 8. From the above answers given by the P.W.3 in his cross- examination, it appears doubtful whether A-1 was actually absconding during the period after the incident or he was already in police lockup. This assumes significance because in his statement under Section 313 Cr PC A-1 claimed that he was in police custody for 14 days after the incident before he was shown as having been arrested. It cannot therefore be said that this circumstance of A-1 absconding has been satisfactorily proved by the prosecution. 9. As regards, the circumstance of recovery of the towel, the trial Court rightly noted that in was not pursuant to the statement made by A-1 while in police custody. From the above answers given by P.W.3 in his cross examination, it became apparent that the towel was already was recovered first and it was only thereafter the statement of A-1 was recorded. This circumstance of recovery of the incriminating piece of evidence was also, therefore, not satisfactorily proved by the prosecution. 10. While the deposition of P.W.3 does prove the alleged illicit relationship between A-1 and A-2, the medical evidence of P.W.7 does not categorically establish the death to be homicidal. A careful perusal of the deposition of the Doctor, P.W.6 reveals that when the Post Mortem Report was first prepared, it was silent on whether the death was in fact suicidal or homicidal. It is only when he deposed in the Court more than a year after preparation of the Post Mortem Report that P.W.6 was categorical that the death was not suicidal, but homicidal. While P.W.6 noticed that there was no ligature mark Page 4 of 5 on the neck, in his cross-examination, he also stated that “external injury in support of struggle is lacking. So also, there was no sign of injury for external violence.” He also admitted that “the towel was not sent to me in sealed packed for examination.” Therefore, the medical evidence cannot be said to satisfactorily establish that the death was only homicidal and not suicidal. 11. In a case of circumstantial evidence, not only have all the links in the chain of circumstances to form a continuous chain which unerringly points to the guilt of the accused, but each of the links in the chain must be satisfactorily proved. In the present case, while one circumstance may be said to be satisfactorily proved, the other important links in the chain of circumstances cannot be said to be so proved. In the circumstances, the trial Court was justified in granting the accused the benefit of doubt and acquitting them of the aforementioned offences. 12. For the aforementioned reasons, the Court is not inclined to interfere with the impugned judgment of the learned trial Court. The appeal is accordingly dismissed. Chief Justice (Dr. S. Muralidhar) Judge Subhasmita (G. Satapathy) Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 24-Jun-2023 12:19:08 Page 5 of 5