Chalaka Munda vs State Of Orissa

S. Talapatra, J.

The Appellant was charged under Section 302 of the I.P.C. for committing cruelty and murder of his wife, namely, Gagei Munda on 09.03.2012 by the Sessions Judge, Keonjhar on 12.05.2015 and on conclusion of the trial, he has been convicted under Section 302 of the I.P.C.

It has been observed by the Sessions Judge, Keonjhar as follows:

“16. Culling the materials available on record on the basis of the aforesaid cardinal principles, it is well established that the deceased has met her unnatural and homicidal death in the house of the accused and that she has faced her death due to number of injuries sustained on her body as apparent from P.M. report under Ext.5 and after her death, she had number of charring injuries on different parts of her body and her saree is found to have contained human blood as apparent from the chemical examination report under Ext.8 Moreover, the accused being the husband was the caretaker of the deceased but he was found absent from home. He has also remained absconded for which charge-sheet is submitted showing him as absconder. No evidence is coming forward from the defence regarding any other circumstances showing the cause of death of the deceased. The plea of fall in the stone quary as raised by the defence has not been substantiated. The cumulative effects of all such circumstances lead to an irresistible conclusion that there is no missing link to exonerate the accused from such charge of committing murder of the deceased, his wife. The nature of injuries sustained by the deceased as apparent from the P.M. report proves the criminal intention of the accused to commit nothing but murder of the deceased which comes under the 1st clause of Sec.300, I.P.C.”

[Emphasis added]

On a keen reading of the said judgment, it further appears that the Appellant admitted the death of the deceased in his house, but he has given no explanation how the injuries were suffered by his wife. No attempt is made to explain or clarify the incriminating circumstances by the accused, his case is a case of total denial. Thus, the accused not only lost the opportunity to exculpate him, but also stood self-condemned.

Pursuant to the said judgment of conviction, the Appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/- (Rupees ten thousand), in default whereof, to undergo further rigorous imprisonment for one year, for committing the offence of murder of his wife.

In order to substantiate the charge, the prosecution adduced 8 witnesses, including the informant (Raisingh Munda). A series of documents Ext.1 to Ext.9 including the P.M. report (Ext.3) have been admitted in the evidence by the prosecution.

Mr. C.R. Sahu, learned counsel appearing for the Appellant has contended that, there is no legal evidence to involve the Appellant with the offence for which he has been convicted. The judgment has been passed on surmise and mere suspicion. No circumstantial evidence has been proved to link the Appellant with the crime. According to Mr. Sahu, learned counsel, admittedly there is no eye witness of the occurrence. Even, the informant (P.W.1) did not claim that he had seen any part of the occurrence. The Appellant, according to the information lodged by P.W.1, had married the deceased. The said marriage was culmination of their love affairs. It had been routine affairs that the Appellant used to, under influence of liquor, demand money from the deceased for consuming liquor. Many a times, the deceased was assaulted by the Appellant. Being afraid, the deceased took shelter in her paternal house. It may be noted here that, P.W.1 is the father of the deceased. It has been revealed in the First Information Report that on 09.03.2012, the Appellant asked the deceased for money to consume liquor, but as the deceased did not comply for want of money, the Appellant got furious and assaulted on the backside of her head by a Silapua (curry stone-bar), inflicted burn injuries and committed her murder.

On receipt of such information, he went to the house of the accused and found the deceased lying dead with injuries on different parts of her body including backside of the head. The informant was convinced that the Appellant had committed the murder of his daughter and accordingly, he reported the occurrence to the Police, thus Ramachandrapur P.S. Case No.62 of 2012 was registered and taken up for investigation. The police report under Section 173(2) of the Cr.P.C. was filed on completion of the investigation by charge-sheeting the Appellant. On commitment the charge aforementioned, was framed.

After the prosecution evidence was over, the statement of the Appellant was recorded under Section 313(1)(b) of the Cr.P.C. The Appellant denied the incriminating statements as surfaced in the trial.

As the defence did not adduce any evidence, on appreciation of the prosecution evidence, the finding of conviction was returned.

To appreciate whether there is evidence to convict the Appellant, a meaningful survey of the evidence is essentially required. As stated earlier, the informant (P.W.1) is not the eye witnesses. Hence, the prosecution has to rely on the circumstantial evidence. P.W.1 introduced the incriminating circumstances by stating that on 09.03.2012, the deceased was assaulted by the Appellant, as she failed to give money to the Appellant for consuming liquor. The Appellant used Silapua (curry stone-bar) to hit the backside of the head of the deceased. P.W.2 namely, Kabi Munda is a post occurrence witness. He accompanied P.W.1, when he had taken the journey to reach his daughter’s house on having the information that she had been subjected to physical atrocity. He stood witnesses to the inquest and signed the inquest report (Ext.2). He has stated that P.W.1 was not in visiting terms to the house of the Appellant, but on getting the information from the villagers about the said murderous assault, he went to the house of the Appellant. P.W.3 Smt. Kali Munda turned hostile and denied her previous statement, made to the police. P.W.4, Ladar Munda has testified in the trial that the Appellant and the deceased were living peacefully. But, he was not declared hostile. P.W.5, Dr. Pramod Kumar Behera has carried out the post-mortem examination over the dead body of the deceased. Based on the post-mortem examination, P.W.5 testified that the deceased had the following injuries:

(i) There is bleeding from mouth.

(ii) Faecal material present in anus.

(iii) contusion of size 5 x 3 cm present infront of the neck

(iv) Contusion of size 7 x 2 cm present on the right side of the forehead.

(v) Contusion of size 5 x 4 cm present on left side of face below left eyelid.

(vi) Laceration of size 5 x 4 x 1 cm on occipital region.

(vii) Abrasion of size 1 x 1 cm present on left breast.

(viii) Multiple charings of injuries of varied sizes 1 x 7 cm present in both buttocks, both chests, right elbow, both shoulders, left thigh, left knee and left side of scapula.

On dissection, he found as follows:

(i) Trachea and larings are ruptured.

(ii) Hyoid bone was fractured.

According to P.W.5 the contusion, abrasion, rupture and fracture, as found on the person of the deceased were ante mortem in nature. The cause of death of the deceased was due to asphyxia, from rapture of trachea and fracture of hyoid bone. P.W.6, Maina Munda did state nothing which is material for proving or disproving the charge. P.W.7, namely, Amulya Kumar Routray had investigated the case. P.W.7 carried out the inquest, did visit the place of occurrence and prepared the site map (Ext.5). P.W.7 has also stated in the trial how he had seized the material objects, including the wearing apparels of the deceased under the seizure list (Ext.7). P.W.7 had also examined witnesses, but he did not complete the entire investigation. In the cross-examination, P.W.7 has admitted that, Raisingh Munda (P.W.1) has not stated to him that about two years back the Appellant visited his home under influence of liquor or that the Appellant committed murder of his daughter. P.W.8, Surya Narayan Das is another Investigating Officer who had completed the investigation and filed the charge-sheet against the Appellant. He has not testified for anything which may be termed as material for purpose of convicting the Appellant.

According to Mr. Sahu, learned counsel for the Appellant, the foundation of the conviction is that, the Appellant has failed to explain the episode how the death occurred to his wife and how his wife suffered so many fatal injuries over her body. The trial Judge has committed serious error in understanding the statutory requirement of discharging burden of proof.

Mr. S.S. Mohapatra, learned Additional Standing Counsel has in order to repel stated that the prosecution has proved the case by putting the episodes of circumstances in a complete chain pointing exclusively to the guilt of the Appellant. He has further stated that, the prosecution has proved that the Appellant was in a habit to extracting money from his wife (the deceased) for consuming liquor and every day the deceased could not provide money and she used to be tortured by the Appellant. On the fateful day, for refusal of making the money, the Appellant by the curry stone-bar brutally hit the deceased. On the following day, P.W.1 filed the information. In the inquest report, the presence of the injuries had been recorded. The post-mortem report has confirmed the observation recorded in the inquest report as regards the ante mortem injuries. P.W.5 has confirmed the injuries as found during the inquest procedure. According to Mr. Mohapatra, learned Additional Standing Counsel, all those episodes formed a chain by demolishing the hypothesis of innocence in favour of the Appellant. Therefore, the judgment of conviction is not warranted to be interfered with.

Having appreciated the evidence and the submission of the learned counsel for the parties, we would like to make an initial observation that the death of Gagei Munda succumbing to the injuries, as noted above has been well established. Now the solitary question that surfaces is that, whether there is legal proof that the Appellant has caused the death of his wife on 09.03.2012 in his house at Patilo, Nakha Sahi. True it is that, the dead body was found by P.W.1 and P.W.2 in the yard of the Appellant’s house. But P.W.1 has categorically stated that he did not see the occurrence. But he saw one Silapua and Funkanala (iron blow-pipe) lying near the dead body. Neither P.W.1 nor any other witnesses have stated that they had found the Appellant in drunken condition. P.W.1 has only stated that some local sahi members of the accused gave him information regarding the death of his daughter. He has merely stated that he cannot give the name of any one of them, from whom he came to know about the episode. But at that time he did not find the Appellant. But he found his grand-father, but he did not enquire anything from any person including the grand-father whether the Appellant was at their house on the previous night when the said occurrence took place. He has further stated that, he noticed marks of burn injuries on the portion of her daughter. P.W.2 did not tell anything about the occurrence, as he nearly accompanied P.W.1. P.W.3, a villager turned hostile and did not reveal anything to involve the Appellant with the commission of offence. Similarly, P.W.4 as noted before did not reveal anything in the trial to support the prosecution case. True it is that P.W.5 has given the catalogue of injuries he found on the dead body of the deceased. He has opined that the cause of death was asphyxia due to rapture of trachea and fracture of hyoid bone. P.W.6 did not reveal anything. P.Ws.7 and 8 are the investigating officers. One of them (P.W.8) filed the charge-sheet on the basis of the purported circumstantial evidence.

The prosecution has miserably failed to prove the charge against the Appellant or to lay the foundational evidence, to say least of episodes of circumstances. No material was brought on record that the Appellant had been with the deceased at the night of occurrence in that home and the place of occurrence was not accessible to others. Even the narrative of drinking habit and assaulting the deceased on refusal of giving money to the Appellant for consuming liquor has not been supported by any evidence. Even P.W.1 has resiled from his statement.

He has testified that he did not state to the police that the Appellant visited his place in the drunken condition. There is no other evidence on drunkenness, assault or presence of the Appellant on the night of occurrence. Therefore, we are constrained to observe that, even the circumstances do not form a basis where the onus shifted to the Appellant to explain how the said occurrence took place. The law is well settled that, unless it is successfully proved by the prosecution that the accused is seized of the knowledge how an event or occurrence had taken place, the accused cannot be asked to explain or the accused cannot be put under any obligation to explain the same in order to exculpate him in terms of the provision of Section 106 of the Indian Evidence Act. On cumulative assessment of the evidence, we are of the view that the evidence laid by the prosecution has gone heyware. Even there may be strong suspicion, but however strong the suspicion may be, that cannot substitute the requirement of the legal evidence. As such, it cannot be held that the Appellant was under obligation to explain how the death of his wife had taken place. Hence, the finding of the trial judge in this respect is unsustainable. As consequence, the Appellant is entitled to benefit of doubt.

In Shambu Nath Mehra vs. The State of Ajmer reported in 1956 SC 404, it has been enunciated inter alia as under:

“"When any fact is especially within the knowledge of any person, the burden of proving that fact is on him". The stress, in our opinion, is on the word "especially". Section 106 is an exception to section

Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". Illustration (a) says-

"A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime". This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge.

If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2).

Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket. On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

[Emphasis added]

Having observed thus, we are persuaded to interfere with the judgment and order of conviction of sentence and consequently, those are set aside.

In the result, the appeal stands allowed. The Appellant be set at liberty forthwith, if not warranted in any other case.

Sent down the LCRs.

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