Kapila Mahakud vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 12th May, 2016 and 13th  May, 2016 respectively passed by the learned Additional Sessions Judge, Angul, in C.T. (S) No.150 of 2013 (C.T. (S) No.58 of 2013) arising out of G.R. Case No.1076 of 2013 corresponding to Industrial Police Station (Nisa) Case No.124 of 2013 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Angul.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for the offence under section 302 IPC.

Prosecution Case:-

On 14.06.2013, at about 8.00 a.m., the accused appeared before the Inspector-in-Charge (I.I.C.) Industrial P.S. (Nisa), Angul and reported to have murdered his wife Saraswati Mahakud (deceased) around 7.00 a.m. inside the Jungle in between Ramadihi-Kaliakata by means of an axe. The I.I.C. (P.W.12) then entered the said fact in the Station Diary maintained at the P.S. and directed the Assistant Sub-Inspector of Police (A.S.I-P.W.8) attached to the said P.S. to proceed to the jungle and verify the said fact. Around 9.00 a.m., the A.S.I of Police (P.W.8) returned to the P.S. and presented a written report (Ext.7), which was treated as FIR by I.I.C. (P.W.12). He then registered the case and took up investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.12) examined the informant (P.W.8) and another at the P.S. and arrested the accused. He proceeded to the spot and prepared the spot map (Ext.1/3) in presence of the witnesses. The wearing apparels of the accused were then seized and so also the sample earth and blood stained earth under seizure list (Ext.2/3). It is stated that the accused thereafter made a statement before P.W.12 and others to have thrown the axe inside the jungle and that he would show the place where it was lying. The statement of the accused was recorded by the I.O. (P.W.12) and pursuant to the same, it is stated that the accused led P.W.12 and others and gave recovery of that blood stained axe from the place where it had been thrown, which was then seized under seizure list. The dead body of the deceased was sent for post mortem examination. The accused was medically examined and he being arrested was forwarded in custody to the Court. The wearing apparels of the deceased were seized on production by the police personnel, who had carried the dead body for post mortem examination. On completion of the investigation, the Final Form was submitted by the I.O. (P.W.12) placing the accused to face the Trial for commission of the offence under section 302 of the IPC.

Learned S.D.J.M., Angul, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused.

The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. As already stated, P.W.8 is the A.S.I. of Police, who reported the matter vide Ext.7 in writing to the I.I.C. (P.W.12). P.Ws.1, 3 & 4 are the post occurrence witnesses whereas P.W.2 is a co-villagers of the accused. P.W.5 is a witness to the seizure of the wearing apparels of the accused and P.W.6 is the constable of police, who is a witness to the seizure of the Station Diary. The wife of the accused is P.W.11 whereas the son of the accused has been examined as P.W.7. The Doctor, who had conducted the autopsy over the dead body of the deceased has come to the witness box as P.W.9. The Investigating Officer (I.O.) has been examined as P.W.12. P.W.8, being again examined to prove the Station Diary entry, his evidence has been recorded assigning his position as P.W.14 (which is not the proper procedure).

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 17. Out of those, the important are, the FIR (Ext.7), the inquest report (Ext.1); the spot map (Ext.10), the post mortem report (Ext.8), the Chemical Examiner9s report (Ext.16). The statement of the accused is Ext.3/3.

The plea of the defence is that of complete denial and false implication. However, the defence has not led any evidence in support of his plea.

The Trial Court, upon examination of the evidence of the Doctor (P.W.9), who had conducted the autopsy over the dead body of the deceased and on going through his report (Ext.8) as well his the opinion to the query made by the I.O. (P.W.12), which has been admitted in evidence and marked Ext.9, has arrived at a conclusion that the death of Saraswati was homicidal. In fact, this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. It has been stated by P.W.9 that she found multiple abrasions of different dimensions over the face of the dead body. She has also stated that right side ear was avulsed from the head with slight attachment at the base, laceration of size 4= X 3= exposed bone with cut of the cervical vertebra just below the right ear, incised wound of 3=X2.1/2= up to the bone deep below the right side neck, incised wound of size 499X3= bone deep of left scapula near shoulder joint, incised would of the size 4=X3= bone deep below the right knee joint. As per his evidence, all these injuries are ante mortem in nature and the cause of death was due to haemorrhage and shock on account of injuries on the neck vessels. He has further deposed that with the seized weapon, i.e., the axe, the injuries, which was noticed over the dead body of the deceased, are possible. The I.O. (P.W.12), in his report, has noted the injuries upon the dead body in his own language and it is also the evidence of other witnesses that they had seen the deceased with such injuries.

With such evidence remaining unchallenged, we are wholly in agreement with the conclusion of the Trial Court that Saraswati met a homicidal death.

Mr.Prajit Kumar Pradhan, learned counsel for the Appellant (accused) submitted that the finding of guilt returned by the Trial court is simply based on the evidence of the A.S.I of Police (P.W.8) who had gone to verify the fact which P.W.12 states to have been told by the accused and noted in the Station Diary Book maintained of the P.S. and P.W.12, who was the I.I.C. of the P.S. and later on became the I.O. of the case. He submitted that the evidence of P.W.8 and P.W.12 that the accused confessed before them to have committed the murder of his wife being totally inadmissible in the eye of law in view of the provisions contained in Section 25 of the Evidence Act, the Trial Court ought to have simply ignored the evidence of those witnesses. He further submitted that when the recovery of the axe at the instance of the accused has not been proved to have been made pursuant to his statement and that too by leading P.W.12 and others to that place, the same ought to have been kept beyond the zone of consideration. He, therefore, submitted that the finding of the Trial Court holding the accused guilty of committing the murder of his wife Saraswati is vulnerable.

Mr.P.K.Mohanty, learned Additional Standing Counsel for the State-Respondent died not dispute the position that the conviction, in the present case, is based upon the evidence of P.W.8 and P.W.12. He further submitted that when the accused came and disclosed about the incident and his involvement in intentionally causing the death of his wife, the same having been investigated and established through other evidence, such as the recovery of the weapon stained with blood at the instance of the accused and his motive as he was frequently quarrelling with the deceased have rightly been taken into account by the Trial Court in convicting the accused.

Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 14) and have perused the documents admitted in evidence marked as Exts.1 to 17.

It be stated here that the Trial Court has culled out certain circumstances by going through the evidence in holding that those circumstances are of clinching nature pointing at the guilt of the accused and those being joined together make the chain complete in every respect, excluding all the hypothesis other than the guilt of the accused, has convicted the accused for commission of the offence under section 302 of the IPC. The followings are the circumstances, which have been noted by the Trial Court:-

“i. Recording of station diary entry no.319 dated 14.6.2013 at the P.S. as per statement of the accused which is proved in the evidence of P.W.8 and P.W.12;

ii. Deputation of P.W.8, the informant Police Officer by P.W.12, who identified dead body of a female with incised injuries on the neck, ear, region with profused bleeding injuries soon after recording information vide station diary entry no.319 proved under ext.17 by the prosecution;

iii. The medical evidence of the Doctor (P.W.9) certifying in presence of rigor mortis over all limbs, avulsed right side ear, a laceration of different sizes, incised would of different sizes having regular margins and the further medical opinion regarding possibility of the weapon of offence proved under M.O-I;

iv. Prompt seizure of the wearing apparels of the accused especially the check lungi with blood stained mark under Ext.2 which was sent for chemical examination under Ext.14 (forwarding report) and in the chemical examination report under Ext.16 there was existence of mark of blood of human origin of Group-A, thus linking the presence of the accused at the scene of the offence which is further reinforced in presence of human blood of Group-A as produced under M.Os.-VIII, IX and X;

v. The denial of accused to have been arrested in connection with this case in his statement under section 313 of the Cr.P.C. is an added circumstance proving conduct of the accused under section 8 of the Indian Evidence Act;

vi. The existence of motive on the part of the accused as the deceased and accused had a serious quarrel preceding the murder which is gatherable from the evidence of the relations of the accused; and

vii. Absence of any explanation by the accused Kapila Mahakud in his statement recorded under section 313 of the Cr.P.c. that the deceased Saraswati way linked to him, which is another strong circumstance against him linking him further to the circumstantial evidence of guilt.”

The Trial Court, having said, as above, has in one paragraph, concluded that the charge under section 302 of the IPC has been proved against the accused beyond reasonable doubt. It would be profitable to reproduce the said paragraph:-

“21. Thus, on a careful analysis of the recorded occupied with the proof in the link in the chain of circumstances as out-lined above, evidence of homicidal death of the deceased in the testimony of P.W.9 receiving further corroboration in production and identification of the weapon of offence proved under M.O.-I, presence of blood mark of Group-A origin on the check lungi put on by the accused at the time of alleged commission of offence recovered from his possession, statement of the accused which is on the basis of station diary entry no.319 dated 14.6.2013, consequent deputation of P.W.8 to Ramanaika Jungle identification of the dead body of the deceased Saraswati Mahakud coupled with the falsified and suppressed version of the accused in his statement under section 313 of the Cr.P.C. which is an added circumstance against the accused, prosecution has squarely proved the charge against the accused under section 302 of the IPC to have killed his wife Saraswati Mahakud by dealing hatchet blows on 14.6.2013 around 7.00 a.m. inside Ramanaika Jungle. Thus, the referred charge under section 302 of the IPC has been proved beyond all reasonable doubts and he is found to be guilty of the offence under section 302 of the IPC and is convicted thereunder.”

The prosecution, having proved that Saraswati met homicidal death, now the point for determination as to the complicity of this accused in intentionally causing the death of Saraswati. The version of the accused before the I.O. (P.W.12) that he committed the murder of his wife is not admissible in view of the provision contained in section 25 of the Evidence Act. It is not the case that the accused when arrived there had carried any incriminating article with him and produced those in support of his oral report which were seized. P.W.12 also does not state that when the accused arrived there, he had marked any blood stains on his wearing apparels or that he produced any article belonging to the deceased for their inspection by P.W.12. P.W.8, in his report (Ext.2) simply writes to have gone to the jungle located in between Ramadihi-Kalikata jungle to verify the fact of murder of Saraswati as mentioned in the relevant Station Diary entry. He narrates in Ext.7 to have searched for the female dead body with injuries all over the body in the jungle and found that on the footpath running inside the jungle. He does not say that the accused led him to that place or even the accused had accompanied him. When he states that he ascertained that the accused had murdered his wife by means of the axe due to some family quarrel; it is not indicated in Ext.7 as to how he could so ascertain and what was/were the sources for him.

P.W.12 does not say that as to how the accused was dealt after he reported before him about the crime committed by him. He also does not state that P.W.8 went to the jungle with the accused or that the accused called P.W.8 to the jungle. When he has stated that the wearing apparels of the accused were seized on 14.06.2013 at 10.15 a.m., he does not say as to whether the seizure took place and also does not say that those were the clothes, which had been worn by the accused when he first reported the matter before him. When he states that the accused made a statement to have thrown the axe inside jungle and would show the place, he does not state as to where such statement was made and recorded and whether the witnesses were then present. His evidence is that the accused led him and other witnesses to the jungle and identified the spot of throwing the axe and then he (P.W.12) himself recovered one blood stained axe in presence of the accused. The position is that the recovery was not at the instance of the accused, but it was upon a search being made by P.W.12. The witness is not stating that then who else had accompanied him. P.Ws.1, 2 & 3 have not supported the prosecution case with regard to the fact that the accused was frequently quarrelling with the deceased. P.W.4 being examined from the side of the prosecution as a witness present at the P.S. when the accused reported the matter has too remained silent during trial. He has also not breathed award with regard to the statement of the accused recorded prior to the seizure of that tangia. In so far as the recovery of tangia, at the instance of the accused pursuant to his statement is concerned, the witness (P.W.5) has turned hostile.

With the above unchallenged evidence on record, we find that the prosecution has miserably failed to establish the charge against the accused beyond reasonable doubt.

The Trial Court, according to us, could not have held that the prosecution case has established through circumstantial evidence at Paragraph-19 of the judgment, which according to us, are not to be of any significance. We are, therefore, hold that the impugned judgment of conviction and order of sentence of the Trial Court are liable to be set aside.

In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 12th May, 2016 and 13th May, 2016 respectively passed by the learned Additional Sessions Judge, Angul, in C.T. (S) No.150 of 2013 (C.T. (S) No.58 of 2013) are hereby set aside.

Since the accused, namely, Kapila Mahakud, is on bail, his bail bonds shall stand discharged.