JUSTICE D. DASH JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.7 of 2008 In the matter of an Appeal under Section 378(1)(3) of the Code of Criminal Procedure and from the Judgment dated the 15.04.2006, passed by the learned Adhoc. Additional Sessions Judge, Fast Track Court, Malkangiri in Criminal Trial No.19 of 2005. ------------------ State of Orissa …. Appellant -versus- Sukumar Biswas …. Respondent For Appellant For Respondent : : Mr. P.K. Maharaj, ASC Mr. Azad Keshari Dash, Advocate CORAM: JUSTICE D. DASH JUSTICE V. NARASINGH DATE OF HEARING :05.08.2024 DATE OF JUDGMENT: 20.08.2024 V. Narasingh, J. 1.
Legal Reasoning
Heard Mr. P.K. Maharaj, learned Additional Standing Counsel for the Appellant and Mr. Azad Keshari Dash, learned counsel for the Respondent. GCRLA No.7 of 2008 Page 1 of 9 2. The judgment dated 15.04.2006 passed by the learned Adhoc. Additional Sessions Judge, Fast Track Court, Malkangiri in Criminal Trial No.19 of 2005 (arising out of Kalimala P.S. Case No.27 of 2005) in acquitting the Opposite Party-Respondent of the charge under Section 302 of IPC is assailed by the State in this appeal. 3. The deceased Haridasi Biswas is the daughter of P.W.3- Manmath Biswas (Informant). On 18.05.2005 when P.W.3-Informant returned to his house since he did not find his younger daughter (deceased), he enquired about her and then he was told by his elder daughter that his younger daughter (Haridasi since deceased) left home around 2:00 p.m. and has not returned. 4. Since the deceased was in relationship with the Respondent-accused, P.W.3 went to the house of the accused in search of his daughter, but he found neither his daughter nor the accused were there in the house of the Respondent-accused. 5. The next day morning the co-villager (Prasanta Mandal)-P.W.7 informed P.W.3-Informant that the deadbody of his daughter with injuries is lying in a ditch near the minor irrigation canal under a kendu tree. Thereafter, he orally GCRLA No.7 of 2008 Page 2 of 9 reported the matter to the OIC who reduced the same into writing and the formal F.I.R.-Ext.6 was registered and the Respondent was cited as the sole accused. 6. On the basis of the said F.I.R., investigation was taken up and during the course of such investigation, 8 witnesses were examined and the accused was taken into custody on 20.05.2005. The accused is stated to have confessed about his guilt and gave recovery of his wearing apparels along with a letter (Ext.5/1) kept inside his house. On conclusion of the investigation, the I.O.-P.W.8 submitted the charge sheet. 7. To drive home the charge, the prosecution examined 8 witnesses. P.W.1 P.W.2 P.W.3 P.W.4 P.W.5 P.W.6 P.W.7 P.W.8 Dr. S.K. Behera-doctor Haripada Chakraborty Manmath Biswas- Infromant (father of the deceased) Mrunal Das-seizure witness Amrit Mandal-seizure witness Kose Madkami-Sarapanch Prasanta Mandal-co-villager Manoj Kumar Samanta-I.O. GCRLA No.7 of 2008 Page 3 of 9 8. Several documents were marked as Exhibits out of which Ext.1-post mortem report, Ext.6-F.I.R, Ext.5/1-letter, Ext.2-opinion of M.O., Ext.3- report of the M.O. and Ext.15- forwarding report are of significance. 9. P.W.1 is the doctor who conducted the post mortem of the deceased-Haridasi. He found the following injuries. “1) Nail marks on the neck with ligature mark on the right side. 2) One lacerated wound of size 4 x 3 c.m. x 1 c.m. over the upper part of the right ear covering the temporal area.” 10. P.W.1 opined that the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. He also found marks of finger nails and opined that the strangulation was done by some external human force. As such from the evidence of P.W.1 it was thus established that the deceased was done to death. 11. The case at hand is admittedly based on circumstantial evidence. Hence, it was incumbent upon the prosecution to prove the chain of circumstances in such a fashion so as to exclude the hypothesis of the innocence of the Respondent- accused. In order to establish its case, the prosecution relied on evidence of P.W.3-the father of the deceased and the informant. GCRLA No.7 of 2008 Page 4 of 9 12. P.W.3 has deposed about the deceased having an affair with the Respondent-accused for about two years and that the accused having proposed to marry the deceased which was told to his wife. 13. P.W.2 who is a witness to the alleged confession of the Respondent-accused did not support the prosecution. 14. P.W.3 is the father and the most material witness. On a close scrutiny of his evidence, it is seen that he only speaks about the deceased having a relationship with the accused- Respondent and that is the reason for him to suspect the accused-Respondent. 15. P.Ws.4, 5 & 7 are the witnesses to the seizure of letter and lungi from the house of the accused-Respondent in terms of his statement supposedly recorded under Section 27 of the Evidence Act, 1872 and P.W.8 is the I.O. 16. The prosecution has strongly based its case on the recovery of the letter and the absence of the accused- Respondent from the village on the date the deceased went missing as incriminating circumstance to connect the accused with the crime. GCRLA No.7 of 2008 Page 5 of 9 17. Learned trial Court on an analysis of the evidence on record have found that the letter-Ext.5/1, does not in any way reveal anything about the murder in question or plan to kill the deceased and it has been rightly held that it cannot be termed “as an expression of anguish and guilt for committing the heinous act” as alleged. In fact the learned trial Court translated the recitals of the letter into English which read as “mother I had done a lot of good work that is why I did not intimate you and in the morning I have come to Malkangiri Court”. 18. It is apt to note here that on the lungi of the accused- Respondent which was sent for the forensic examination as per Ext.15, no blood was found. 19. So far as confession of the accused-Respondent is concerned, admittedly there is evidence on record to indicate that such confession was made in the presence of the I.O.- P.W.8, as evident from the statement of P.W.5 in which he states that “subsequently the accused was arrested and brought to our village and in our presence his statement was recorded u/Sec. 27 of Indian Evidence Act. The accused voluntarily gave his confessional statement which was recorded in presence of witnesses by the I.O.” GCRLA No.7 of 2008 Page 6 of 9 As such, the same is hit by Section 25 of the Evidence Act. 20. So far as the conduct of the accused-Respondent not being present in the village is concerned, the learned trial Court has dealt with such act, being admissible under Section 8 of the Evidence Act, paragraph-9 of the judgment in the following terms. “9…………… In the instance case, the occurrence took place on 19.05.2005 and the accused was arrested on 20.05.2005 and there is nothing in the record to show that the accused was avoiding arrest. Therefore, the contention of the learned public prosecutor about absconsion of the accused, cannot be accepted……….” 21. Learned counsel for the State submits that the learned trial Court committed patent error in appreciation of evidence which has led to miscarriage of justice for which the case at hand merits interference. 22. Per contra, learned counsel for the Respondent submits that even if the entire prosecution case is accepted at its face value, it is only based on suspicion and the learned trial Court on detailed analysis of the evidence on record arrived at the finding of acquittal which does not merit interference. Learned counsel for the Respondent relies on the judgment of the Apex GCRLA No.7 of 2008 Page 7 of 9 Court in the case of Apex Court Mrinal Das & Others vs. the State of Tripura, (2011) 9 SCC 479 to fortify his submission that in the light of the said judgment, the case at hand does not merit interference of this Court. 23. The standard of proof in a case based on circumstantial evidence needs no reiteration, the same is set at rest by the judgment of the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622. 24. On an analysis of the evidence on record in the case based on circumstantial evidence which has been adverted to in the preceding paragraphs, on the touchstone of the law laid down in the case of Sharad Birdhichand Sarda (Supra), keeping in view the time tested doctrine of evaluating the evidence while scrutinizing the judgment of acquittal, this Court is of the considered view that the judgment of acquittal as recorded by the learned Trial Court cannot be said to be perverse, rather the same is based on cogent and coherent analysis of evidence on record. As such the same does not warrant interference by this Court in exercise of its appellate jurisdiction by disturbing the finding of acquittal. GCRLA No.7 of 2008 Page 8 of 9 25. Hence, the GCRLA is dismissed. Bail bonds be discharged. (V. Narasingh) Judge D. Dash, J. I agree (D. Dash) Judge Orissa High Court, Cuttack, Dated the 20th August, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2024 18:13:28 GCRLA No.7 of 2008 Page 9 of 9