The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.27 of 2022 (From the judgment of conviction and order of sentence dated 14.12.2021 passed by the learned Additional Sessions Judge, Sundargar in S.T. Case No.19/16 of 2016) Basanta Banchhor …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in the case: For Appellant : Miss. A.K. Dei, Adv. -versus- For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-10.08.2023 DATE OF JUDGMENT:-19.10.2023 Dr. S.K. Panigrahi, J. 1. This Appeal is directed against the judgment of conviction and order of sentence dated 14.12.2021 passed by the learned Additional Sessions Judge, Sundargarh in S.T. Case No. 19/16 of 2016 (arising out of G.R. Case No.994 of 2015 corresponding to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 1 Hemgir P.S. Case No.128 of 2015), convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs.20,000/- i.e. to undergo R.I. for two years under Section 302 of the I.P.C. and further to undergo R.I. for seven years and to pay a fine of Rs.10,000/- i.d. to undergo R.I. for one year under Section 201 of the I.P.C. I. CASE OF THE PROSECUTION: 2. The case of the prosecution is that on 19.09.2015, at about 6 A.M, Basanta Banchhor (“the appellant”) and his wife Santosini Banchhor (“the deceased”) had been to the nearby jungle to bring fire wood. After some time, while Basanta returned home, Santosini did not come back. Next day, the dead body of Santosini was found near the railway track at Birenchapal and the Jharsuguda railway station. Rama Kharsel (“The informant”)/ brother of Santosini, lodged the written report before the Hemgir police station alleging that the appellant mortally wounded the head of the deceased by an axe and threw the dead body near the railway line. 3. The police registered the FIR as Hemgir P.S Case No.128 dated 20.09.2019 and conducted inquest and sent the dead body for post-mortem examination. The case was investigated into by the IIC, Hemgir P.S., Thakur Das Murmu. During investigation, the I.O. made requisition for collection of the physical clues by the scientific officer, DFSL, Sundargarh and team came and collected Signature Not Verified
Facts
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 2 clues and also found blood mark from Budhajharia jungle where the appellant and the deceased had gone to collect fire wood till the railway track of Birenchapal. Subsequently, the I.O. arrested the appellant against the statement of the father and son of the appellant. The appellant confessed his guilt and led discovery of the axe which was recovered in presence of the independent
Legal Reasoning
witnesses. After finding prima facie material against the accused, the I.O submitted charge sheet against him for the offences enumerated under Section 498-A/302/201 of the I.P.C. finding the involvement of the appellant on a prima facie basis. 4. After submission of charge sheet, the learned SDJM, Sundargarh took cognizance of the offence of the above said offence and after observing all legal formalities, committed the case for trial by the Court of Sessions. 5. The plea of the accused is one of complete denial of the occurrence and also false implication. 6. The prosecution examined twenty-four witnesses and led evidence with several documents and material objects. The Defence, on the other hand, did not examine any witness. II. TRIAL COURT JUDGMENT 7. The Trial Court began the analysis of the case with the examination of the medical report to ascertain the nature of the death of the deceased. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 3 8. P.W.18 deposed that, on 21.09.2015, he conducted post mortem on the dead body of Santosini Banchhor which was identified by Constable P.M. Mishra and a relative of the deceased, Tankadhar Banchhor. He deposed that the time of death was within 48 to 56 hours from the time of post-mortem examination. The medical report supported the ocular testimony that the death was two days prior to the post-mortem examination. He testified to have found one injury on the right parietal area of skull. The brain matter oozed out of skull via that cut. He also mentioned a fracture on the right parietal bone and opined that the cause of death was due to shock and excessive bleeding. In cross- examination, he refuted the hypothesis of the injury being caused by railway accident for there was only the aforementioned injury on the head. 9. The post mortem report also revealed the injury to be ante mortem in nature. No evidence has been brought on record by the defence that the death is not homicidal or in other words because of the animal bite. He opined that the injury as recorded in the post-mortem report could have been caused by a hard and blunt weapon like the axe seized during the investigation. Ergo, the trial court, against the evidence of P.W.18 and in absence of any suggestion with regard to the cause of death by any animal or due to railway accident, concluded that the death is, indeed, homicidal. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 4 10. Now, the trial court examined the testimony of the other prosecution witnesses. 11. P.W.5, son of the appellant, deposed that on the date of occurrence, in the morning, his parents had gone to Budhajharia jungle to collect fire wood and at that time he was at home. He further stated that his father returned home at about 8.30 A.M and took his younger brother Satya Banchhor to Kanika and returned back at about 9 A.M. Later/ at about 3 O’ clock afternoon, he asked his father about his mother as she had not returned home yet. In reply, the appellant told him that his mother had been collecting fire wood with other ladies of larian caste. He remembered his grandfather asking the appellant that how he had left the deceased alone in the jungle which he never did in other days. Importantly, P.W.5 testified that the appellant secretly told him that he had already killed his mother. Thereafter, P.W.5 intimated the local people namely Sradhar Bhoi and Rama Kharsel that his father had killed his mother. It also reveals from his testimony that people searched for his mother and on the next day, the dead body was found near the railway track at Birenchapal. He also deposed that in the night, the appellant told him that he was going to his in-laws’ house and then he left the house to return home at about 3 o’ clock in the night. He deposed to have suspected that in that night, his father Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 5 carried the dead body from the jungle and threw the same near the railway track. 12. In cross-examination, the said witness was contradicted with the statement that he had asked his father at 4 O’ clock afternoon and at about 5 O’ clock his grandfather enquired from his father as to how he left the deceased alone in the jungle, though in other days, he had not left her alone. The said witness was further contradicted with his earlier statement that his father told him to have killed his mother and intimated matter to Rama Kharsel and Sradhar Bhoi who went for search of the deceased and that his father told him to go to his parents in-laws house and returned home at about 3 O’ clock at night and that actually his father carried the dead body from the jungle and threw the same near the railway track. The aforesaid contradiction were brought to the notice of the I.O/P.W.22 and the latter stated that P.W.5 has never stated him that on return of the accused to the home, he asked the whereabouts of his mother and as to why she did not return and his grandfather also asked as to why her daughter-in-law did not return and why the accused was left alone in the jungle and more particularly that his father told him that he killed his mother and he (P.W.5) disclosed such fact to the witnesses Rama Kharsel and Sradhar Bhoi. 13. P.W.6, father of the appellant, substantially corroborated the deposition of P.W.5. He deposed that on the date of occurrence, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 6 in the morning, the appellant and the deceased proceeded to the jungle to collect fire wood. At about 8.30 A.M when he returned after selling milk, he found the appellant had returned home without the deceased and later, the appellant took his youngest son and went to Kanika. He also deposed that he proceeded to take out the cattle to the jungle for grazing and when he returned home before sunset, he found the four children of the accused weeping at the home for their mother had not returned. He deposed to have asked the appellant about the whereabouts of his daughter-in-law but he was told that the deceased was at the jungle with other ladies. When she did not return even at night, the appellant reassured him that his wife could have gone to her parents’ house. Suspecting his conduct/ P.W.6 deposed to have approached the Kanika beat house and informed the police. He further deposed that the accused returned home after mid night and in the morning they searched for the deceased and ultimately dead body was found near the railway track at village Birenchapal. The local police of Kanika beat house took one of the co-villagers namely Pabitra Gardia who identified the dead body. He also deposed to have gone to Birenchapal and identified the dead body himself. He testified that the appellant confessed his guilt on police investigation and produced the blood stained axe. 14. The trial court noted that the testimonies of P.W.5 and P.W.6 were contradicted to some extent by the defence. In cross- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 7 examination, P.W.5 fumbled on certain statements- the appellant telling him that he had killed the deceased, the timings of the conversations that he had deposed about in his testimony etc. On the other hand, P.W.6 revealed that he did not state before the police that in the morning, the people searched for the deceased but did not find her. He also seemed confused on his claim that the accused confessed before the police to have killed his wife and produced one axe having mark of blood stain and sticking of hair. P.W.6 admitted that his relations with his son were not affable for the appellant did not give food or clothes to him. 15. P.W.4, uncle of the appellant, deposed that, on 19.09.2015, in the morning, the accused and his wife had been to the jungle to collect fire wood and as after a fiery quarrel, the appellant killed his wife and returned home. His deposition corroborated P.W.5 and P.W.6 however he stated that the railway personnel informed the police about the dead body and accordingly police went to the spot. He also deposed that, on 21.09.2015, the police had come to his village and he along with some villagers as well as appellant accompanied the police to the spot where the appellant identified the spot of occurrence where he killed his wife and also the track through which he carried the dead body and went to the second spot i.e. railway track. In cross-examination, P.W. 4 conceded that he had not stated before the police that he along with other villagers and the accused accompanied the police to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 8 the jungle and that the accused identified the spot of occurrence and told that he had killed his wife and also shown the track by which he transported the body to the railway track. The trial court held that the testimony of the said witness in chief was entirely contradicted in the cross- examination. 16. P.W.1, brother of the deceased and the informant, deposed that on the date of occurrence, the father-in-law of his sister (P.W.7) told that the appellant had gone away and had not returned home. Accordingly, P.W.1 along with other villagers went in search of the accused but did not find him anywhere and ergo, reported the fact to the police. He also deposed that on the next day, one milk man informed the police about the death of a person and police went to the spot i.e. Birenchapal near the railway track and found the dead body of the deceased. In the cross-examination, he revealed that that one police officer scribed the FIR which was not read over and explained to him. 17. P.Ws 13 to 15 only deposed that the appellant and the deceased used to quarrel regularly. Prior to the date of occurrence, the appellant usually assaulted the deceased for which several meeting were conveyed in the village to settle the matter. They subsequently heard that the accused had committed murder of his wife. 18. P.Ws.19 and 23 who are employees of railway department deposed with regard to lying of the dead body near the railway Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 9 track at K.M No.551. P.W.23 deposed that on 20.09.2015 while he was working as Deputy station superintendent at Brajrajnagar, railway station, at about 7:50 A.M one Mahendra Kumar Majhi who was working as key man detected a female dead body lying near the track at K.M No.551/05-07 between Hemgir and ACBIL stations and accordingly reported the matter to the Asst. station master, ACBIL namely Arun Prasad and the latter intimated the matter as per the diary entry no.1080. He also intimated the fact at GRP as well as RFP, Brajrajnagar and proved his report vide Ext.20. 19. P.W.16 deposed that on 20.09.2015 while he was in charge scientific officer, DFSL, Sundargarh, testified that he arrived at the spot and did not find any physical clues there but collected sample soil and suspected soil. He also deposed that then he went up to a high forest land and found broken bangles and as per the direction of the police, he proceeded to the suspected place of assault which was near Budhajharia jore where he found blood stained soil. Accordingly, he collected blood stained soil, sample earth and after drying, packed and sealed it and handed over to the police who seized the same. In cross-examination, he deposed that the broken bangles were found at a height of 15 feet from the railway track and he did not find any blood stained on the railway track and place where the broke bangles were found. In cross-examination, he also deposed that at Budhajharia jore Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 10 where the blood stains were found would be about one kilometre from the spot on the railway siding Kanika. 20. P.W.22 deposed that during investigation, he made requisition to DFSL scientific team based upon which scientific officer collected physical clues and accordingly (P.W.22) seized the clues. 21. P.W.22 further deposed that in his custody, the accused confessed his guilt and leading to discovery of the concealed axe in his house and also confessed that he had threw the dead body on the railway track. P.W.22 also deposed that he had recorded the statement of the accused. He also deposed that the entire proceeding including the confession of the accused and discovery of the axe was recorded by videographer P.W.9. P.W.9 corroborated statement of P.W.22 and provided the compact disc of the recording. P.Ws 2 and 3 are witnesses to the confessional statement corroborated the deposition of P.W.22. They also categorically deposed that the accused confessed his guilt and gave recovery of the weapon in their presence which was kept under the thatch of the entrance room and the same was not visible from the outside. 22. On perusal of the report, it is found that although human blood was detected but no grouping of blood could be made as same was deteriorated. 23. On consideration of the above evidence on record, it is clear that the case of the prosecution completely rests upon circumstantial Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 11 evidence. The Trial court scrutinized the undisputed facts through the Supreme Court dictum in Sharad Birdhichand Sarda v. State of Maharashtra,1 to judge that the circumstantial evidence presented by the prosecution do form an unbreakable chain of events. Next/ the trial court made use of the “last seen theory” to ascertain the version presented by the prosecution. 24. By the conjoint reading of the evidence of the prosecution witnesses including the doctor and Investigating Officer, the trial court observed that there was a clear intention as well as the motive to cause death. The appellant has been unequivocally implicated with the charge death of the deceased. Accordingly, the accused has been convicted for the offence punishable under Section 302/201 IPC with a sentence described hereinbefore. III. APPELLANT’S SUBMISSIONS: 25. Learned counsel for the Appellant completely denied the charges pressed herein and decried false implication. It was submitted that the entire prosecution case is based on circumstantial evidence and the prosecution has miserably failed to prove the case beyond all reasonable doubt and to prove the chain of circumstances but, the trial court arbitrarily and illegally convicted the appellant. 26. That the appellant was falsely charged under Section 302 of the I.P.C. The investigation was callous perfunctory and deliberately 1 (1984) 4 SCC 116 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 12 made to scapegoat the appellant when there is no direct evidence available on record indicating the active role of the appellant in the death of the victim. The trial court ignored the material facts while delivering the judgment, more particularly when none of the witnesses had seen the appellant committing the alleged offence. 27. It was argued that the trial court failed to appreciate the fact that the testimonies of the P.Ws. are marred with inherent contradictions. While, P.W.5 and P.W.6 claimed to have heard and ascertained facts which would implicate the accused; in their cross-examination, they have conceded that they did not reveal these conversations to the police. Similarly, entire deposition of P.W.4 was contradicted in his cross-examination. This kind of contradiction in the prosecution evidence renders the chain of circumstantial evidence and the subsequent finding of the learned Trial Judge completely obsolete and absurd. 28. In course of argument, the counsel for the defence submitted that P.W.5 and P.W.6 are closely related to the deceased and their depositions are not creditworthy. P.W.5 is the son of the deceased and P.W.6 is the father-in-law of the deceased. Particularly, P.W.6 was not pulling well with the appellant for he was not providing food and clothing to him; as been elicited from his mouth in cross-examination. It is claimed that the aforementioned P.Ws. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 13 are interested witnesses and have exaggerated the prosecution version. 29. The defence counsel submitted that as per cross-examination of PW.14, the village women used to go to the said jungle for collection of the fire wood. Crucially, the appellant and his wife routinely went to the jungle and ergo/ the “last seen theory” cannot be employed to consider the particular date of occurrence in isolation. It is also submitted that there is no evidence on record that the accused as well as the deceased were seen near any Budhajharia jungle or at the railway track where the dead body was found. 30. The counsel for defence also relied on the deposition of the informant that he had not scribed the FIR. One police officer scribed the FIR which was not read over and explained to him. It is, therefore, argued that the version in the FIR is not authentic and should be disapproved. IV. RESPONDENT’S SUBMISSIONS 31. Learned counsel on behalf of the respondent/State supported the case of the prosecution in toto, while, contending that based on the situs and nature of injuries, the Court can draw an inference that the appellant had the intention to kill his wife. 32. It was submitted that the prosecution has proved by oral as well as circumstantial evidence the charges against the accused persons on the basis of which the appellant has been convicted Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 14 then how on the basis of same material the other accused persons have been acquitted. 33. The prosecution has fully proved its case by evidence of P.W.5, and P.W.6. The conduct of the accused around the occurrence has been vividly narrated by his son, and his father and the corroboration from the depositions of P.W.6, P.W.7, P.W.8, P.W.9, P.W.10, and P.W.12. 34. It is submitted that the appellant had been harassing and assaulting the deceased in lieu of fiery quarrels between them. The combined reading of the testimonies of the P.Ws. and other documentary evidence is enough to prove that the appellant is, indeed, guilty. V. COURT’S ANALYSIS AND REASONING: 35. Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also bestowed our due attention to the evidence on record, both oral and documentary. 36. We will take note of the charges severally and scrutinize the judgment of the trial court against rival contentions of the counsels. 37. We cannot help but notice that the case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 15 proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence. 38. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha vs. State of Jammu & Kashmir,2 wherein the apex Court quoted number of judgments and held as under:- “10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of (1985) Suppl. SCC 79, U.P. v. Sukhbasi Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat 2 (2002) 8 SCC 45 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 16 circumstances Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn the from cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07/ para 21) “21. In a case based on circumstantial evidence, the settled law from which the is that the circumstances conclusion of guilt is drawn should be fully circumstances must be proved and conclusive the in nature. Moreover, circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” such all 39. We first take up the category of witnesses who deposed about the victim having been seen with the accused before the occurrence. 40. P.W.5 is the son of the accused and the deceased. He deposed that on the date of occurrence, in the morning, his parents had gone to Budhajharia jungle to collect fire wood and at that time he was at home. He further stated that his father returned home without his mother (deceased) and told him that his mother had been collecting fire wood with other ladies. He also deposed that the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 17 accused went out two more times that day; one in the afternoon and second in the night. 41. P.W.6, father of the appellant, substantially corroborated the deposition of P.W.5. He deposed that on the date of occurrence, in the morning, the appellant and the deceased proceeded to the jungle to collect fire wood. Importantly, he deposed that the accused was not himself that day and was behaving strangely. This is also corroborated by P.W.17. 42. From the evidence of P.W.5, P.W. 6, and P.W.17, it is clearly established that both the appellant and the deceased had gone together to the jungle for collecting fuel. The dead body of the deceased was found in the jungle on the next day. 43. Be that as it may, the evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is a close proximity of time between when the accused was last seen with the deceased and the discovery of the body of the deceased, or in this case the time of the death of the deceased. However, the circumstances of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. Particularly, in the present case when there is no close proximity Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 18 between circumstances of last seen together and the approximate time of death, the evidence of last seen becomes weak. 44. Hence, we move onto the confession of the appellant and the discovery of the weapon under Section 27 of the Evidence Act. As per the evidence of the I.O. (P.W.22), accused-appellant confessed to the crime during his interrogation and gave away the location of the murder weapon which was seized by the police. The statement of accused, in custody, is admissible to the extent that he would give recovery of the axe as it relates distinctly. The accused had shown the place where the axe was kept concealed, i.e., inside his house. Moreover, the proceeding has been recorded on video and amply corroborated by independent witnesses P.W.2 and P.W.3. The circumstances relating to the recovery of axe from the house of the accused is a formidable one. Therefore, the deposition of the I.O./P.W.22 cannot be presumed to be untrustworthy; when a Police Officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct, if it is not otherwise shown to be unreliable. It is for the defence through cross examination of witnesses or through any other materials to show the evidence of Police Office, is, either unreliable or at least unsafe to be acted upon. However, the defence has not been able to successfully cast Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 19 sufficient doubts over the evidence under Section 27 of the Evidence Act. 45. Next, we consider the deposition of P.W.18 who conducted the post mortem on the deceased. The medical report supported the ocular testimony that the death was two days prior to the post- mortem examination. He testified to have found one mortal injury on the right parietal area of skull. In cross-examination, he has also refuted that the injury could have been caused by a railway accident for there was only the aforementioned injury on the head. P.W.18 also opined that the aforementioned injury could have been made caused by the seized axe. Ergo, as the next link in the chain of circumstances, it is established that the death of the victim was homicidal and the appellant has had a role in the occurrence. 46. Now we move onto the last piece of the puzzle; the motive of the crime. It is trite in law that in a case based on circumstantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused. In State of U.P. v. Kishanpal,3 3 (2008) 16 SCC 73 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 20 the Supreme Court examined the importance of motive in cases of circumstantial evidence and observed : “38. … the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or ex-cited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but is clear and if the evidence unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.” 47. The motive of the appellant is indicative from the deposition of P.Ws 13 to 15 where they have disclosed that the appellant and the deceased used to quarrel regularly. Prior to the date of occurrence, the appellant usually assaulted the deceased for which several meeting were conveyed in the village to settle the matter. Even P.W.4, uncle of the appellant, deposed that, on Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 21 19.09.2015, in the morning, the accused and his wife had been quarrelling to the jungle to collect fire wood. This can be inferred that the appellant, at least before the occurrence, did not have a pleasant relationship with his wife. Therefore, the suggestion of the prosecution connecting the sour relations between the appellant and the deceased to the death of the victim is a plausible explanation of the purported occurrence. 48. Now a plausible chain of events has been established; we move to the points made by the defence to rebut the story of the prosecution. 49. It was contended by the defence that the deposition of P.W.5 and P.W.6 are inadmissible as they are marred with contradictions. The counsel for the defence has also argued that the aforementioned P.Ws. are related witnesses. They have pressed the point that the appellant had not being treating his father (P.W.6) well and his deposition should therefore be seen suspiciously. 50. Firstly, the mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 22 evidence of an interested witness cannot be accepted without corroboration.4 51. Plus, "Related" is not equivalent to ’interested’. A witness may be called ’interested’ only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused punished. Ergo, the fact that P.W.5 and P.W6 are son and father of the accused respectively does not per se discredit her testimony as the sole eye witness of the occurrence. 52. Secondly, minor contractions and omissions do not affect core of prosecution case and cannot be taken as a ground to reject prosecution evidence. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, it needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The contradictions or 4 State of Gujarat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 23 irregularities should create a serious doubt about the truthfulness or creditworthiness of a witness. 53. In this context, we may profitably refer to what has been stated by Sabyasachi Mukharji, J. (as His Lordship then was) in Gurbachan Singh v. Satpal Singh5: from case to case, circumstances “4. … The standard adopted must be the standard adopted by a prudent man which, of course, may to vary circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. 5. The conscience of the court can never be bound by any rule but that is coming itself dictates the the consciousness and prudent exercise of judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated.” 54. While the prosecution story is based on the deposition of the P.W. 5 and P.W.6, they have nonetheless employed depositions of other P.Ws. and other medical and documentary evidence to paint an unequivocal chain of events such that minor contradictions and gaps can be safely ignored. In conclusion, the 5 AIR 1990 SC 209 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 24 prosecution has clinchingly established the circumstances which are not only complete in itself but are sufficient to sustain the conviction of the appellant. There is sufficient evidence on record which unerringly points out that it is the appellant alone who has committed the murder of his wife and the circumstances are not consistent with his innocence. VI. CONCLUSION: 55. There is no reason to believe that the appellant has been falsely implicated in this case. No such suggestion was made by the witnesses or the investigating officer. All the circumstances relied on by the prosecution have been proved and they form a chain which leads to the only conclusion that the offence must have been committed by the Appellant. 56. The result is that this Appeal is without merits and the same is liable to be dismissed. We do so, confirming the conviction and sentence passed by the court below. 57. Accordingly, this JCRLA is dismissed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 19th October, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 25