Samir Chakarabarty alias Kasinath Bagchi vs State of Orissa

M. Papanna, J.—This Criminal Appeal is against judgment of the 1st Additional Sessions Judge, Puri in S.T. Case No. 28/86 of 1996. The trial Judge convicted the Appellant u/s 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life.

M/s. Machine Magur Company, Calcutta had taken a portion of Shyama Jyoti Lodge (for short ''Lodge'') at Puri on lease. It was being used as a ''Holiday Home'' managed by owner of the said Lodge. The following accusation is fastened to the Appellant.

With effect from 18.4.1995 Suite No. B of the Lodge was booked by the Appellant through the aforesaid Company. The Appellant accompanied by the deceased came to Puri. They were putting up together in Suit No. B. On 22.4.1995 door of the suite was not opened till 9 A.M. Employees of the Lodge knocked the door but it was not opened from inside. The Manager of the Lodge, on being intimated about this fact, came and knocked the door. Ultimately, the Appellant opened the door from inside. He kept mum on being questioned why, in spite of repeated calls, he did not open the door. The deceased was covered with a Chadar on a cot. On removal of the Chadar she was found lying dead in a pool of blood in naked condition. There were cut injuries on her neck. Sea Beach P.S. Cast No. 48 of 1995 was registered on the information of the Manager of the Lodge. Police investigated into the case. Inquest over the dead body of the deceased was held. It was sent for autopsy. On completion of investigation in all respects, Police submitted charge sheet against the accused u/s 302 of the Indian Penal Code.

The accused pleaded innocence. Defence has denied in to the allegation fastened to the accused.

Evidence of ten witnesses has been pressed into service for the prosecution. On witness was examined for the defence. P.Ws. 1, 2, 6 and 7 were the employees of the Lodge. P.W. 3 (I.O.) submitted charge-sheet against the Appellant. P.W. 4 (Doctor) conducted autopsy on the dead body of the deceased. P.Ws. 5 and 8 are the relations of the deceased as well as of the accused. P.W. 9 is a customer of the lodge whereas P.W. 10 is the O.I.C. of the Sea Beach Police Station.

On consideration of evidence on record, the trial Judge convicted the Appellant. The Appellant is sentenced to imprisonment for life which is under challenge in this appeal.

The Learned Counsel for the Appellant has contended that it is a case of No. evidence. Circumstantial evidence, according to him, in this case is not clear, consistent and conclusive to hold that the accused is the real offender. The learned trial Judge ought not to have relied on the same in convicting the accused. He has drawn our attention to the evidence of employees of the Lodge who have failed to identify the accused. On these grounds the Learned Counsel for the Appellant persuaded us to set aside the conviction of the Appellant.

On the other hand, the learned Additional Government Advocate for the State supported the impugned conviction and sentence passed against the Appellant.

Prosecution lacks in direct evidence to show that the Appellant is the real offender. The Learned Counsel for the Appellant contends that it is a case of No. evidence. Such contentions raised on behalf of the Appellant cannot be accepted if circumstantial evidence to prove the guilt of the accused is available. Conviction of the Appellant is based on circumstantial evidence in this case. We can categorise the circumstantial evidence as produced by the prosecution here under:

(i) Medical evidence of P.W. 4 showing that death of the deceased is homicidal in nature;

(ii) Motive of the accused for committing the crime;

(iii) Accused and the deceased were putting up in suite No. B of the Holiday Home, Puri and were last seen together in the night of occurrence in the said suite;

(iv) Whether the accused is the real offender.

Before we look into circumstantial evidence available on record we have to be aware of the settled position of law on the subject. When the prosecution case hinges entirely on circumstantial evidence, it must be fully established and the chain of evidence furnished to those circumstances must be so complete as not to leave any reasonable doubt for a conclusion consistent with innocence of the accused. The said circumstances from which conclusion of guilt is to be inferred are not only to be fully established but also they should be of conclusive in nature so as to be consistent with the only hypothesis of guilt of the wrong doer. Above all, it should not be capable of being explained by any other hypothesis except his guilt. That apart, all the circumstances cumulatively taken together should lead to irresistible conclusion pointing only to the accused as perpetrator of the crime. In the case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, the SC has said that while appreciating the circumstantial evidence, the Court has to be very careful bearing in mind these guidelines. Human nature is too willing when faced with brutal crime to spin stories out of strong suspicion. Between ''may be true'' and ''must be true'' there seems to be a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before the accused is convicted. In the case of Jaharlal Das Vs. State of Orissa, the SC has said that to sustain conviction of the wrong doer the circumstantial evidence must satisfy the following three conditions:

(a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established,

(b) Those circumstances should be of a definite tendency un-eringly pointing towards the guilt of the accused; and

(c) The circumstances taken cumulatively should form a chain so complete that there is No. escape from the conclusion that within all human probabilities the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

In the case of Hanumant Vs. The State of Madhya Pradesh, the SC has cautioned the danger of likelihood that conjecture or suspicion may take the place of legal proof. But such suspicion, however strong, cannot be allowed to take the place of legal proof. Thus, the Court should be watchful and ensure that conjecture and suspicion do not take the place of legal proof. The Court must satisfy itself that the various instances in the chain of evidence should be established clearly and that the complete chain must be such as to rule out reasonable likelihood of the innocence of the accused. Therefore, bearing in mind the above principles we have to consider the reasoning of the trial Court in reaching the conclusion that the Appellant is the real offender.

Medical evidence is one of the chains in the circumstantial evidence tendered by the Doctor (P.W. 4). We have examined the same carefully and found as follows:

A clean cut wound on the anterior aspect of the neck placed slight obliquely just below the thyroid cartilege at the centre which extends from the left side and runs towards the right side of the neck, ends on the line of the angle of the right mandible. The size of the wound being length 13 cm x width 5 cm at the centre, varies in depth, more on the right side than on the left which cuts the plstysma muscle, sternohyoid muscle, external jugular vein sterno cledomastoid muscle, superior omohyoid muscle, the common carotid artery and internal jugular vein of the right side of the neck serially. The tracheal ring found out below the crico-thyroid muscle (the depth ranged from I cm to 6 cm)

P.W. 4 has opined that cause of death of the deceased was due to haemorrhage and shock resulting from throat cutting the major vessels of the neck. He has also stated-that injuries are homicidal in nature and time since death was within 12 to 18 hours from the time of P.M. examination. In his opinion a sharp-edged new blade can cause the above injuries on the neck of the deceased. He has proved the Post Mortem report (Ext-1).

Relying on medical evidence the trial Judge came to a finding that the injuries sustained by the deceased were ante-mortem in nature and she died a homicidal death. During trial the defence did not challenge the medical evidence. Even the Learned Counsel for the Appellant did not challenge the said finding of the trial Judge in course of hearing of the appeal. As such the finding of the learned trial Judge that the deceased died homicidal death cannot be interfered with.

Motive of the wrong doer to kill the deceased is the next point for consideration. In a case where prosecution depends entirely on circumstantial evidence a duty is cast on the Court to look for motive of the wrong doer. In the case of Udayapal Singh v. State of U.P. (AIR 1972 S.C. 54) the SC has laid down the law on the subject as below:

In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having strong enough motive had the opportunity to commit the crime and the established circumstances on the record considered along with the explanation if any of the accused exclude the reasonable possibility of anyone else being the real culprit, then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may in that event safely be held guilty on such circumstantial evidence:

Motive is a most important and relevant factor and a compelling force behind commission of a crime. So we cannot ignore motive of the wrong doer in a criminal trial. But motive is purel a state of mind known to perpetrator of the crime. It cannot be proved by direct evidence. We have to see what circumstances leading to such motive have been placed before the Court. In this case prosecution has not ascribed any motive to the Appellant. We find that there is a total failure on the part of the prosecution to prove motive for compelling him to commit the crime. In fact there is No. such endeavour made by the prosecution to prove the motive of the Appellant. of course absence of proof of motive does not render evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to certain course of action leading to commission of the crime. Case of Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, can be referred in this regard.

Whether the accused and the deceased were putting up together in suite No. B of "Holiday Home" at Puri during the night of occurrence is the next chain of circumstances for consideration. Some employees of the Lodge, such as P.Ws. 1, 2, 6 and 7, have been examined on behalf of the prosecution to prove this fact. Laxmi Behera (P.W.1) is one such witness. In fact, her husband Shankar Behera was the employee of the Lodge. However, she happened to be there at the material time. But she did not support the prosecution case. Her evidence does not specifically indicate that the Appellant and the deceased were staying in Suite No. B of the Lodge during the fateful night of occurrence. Evidence of P.W. 2 goes to indicate that the Appellant Was staying in the Lodge along with a woman. She found her lying dead in a pool of blood on a cot. The accused was alone present at that time in the Suite. But during cross-examination she has stated to have not gone inside the Suite. Above all she could not identify the Appellant during trial. Her testimony shows that she another person other than the accused lying in an unconscious state in the suite. This is how she became inconsistent in her statement. She became hostile to the prosecution case. Similarly, another such employee (P.W. 6) also turned hostile to the prosecution case. During trial he could not identify the Appellant. Even the informant (P.W. 7), the Manager of the Lodge, failed to identify the Appellant clearly. This being the evidence of the employees of the Lodge, much weight age cannot be given to it.

Now coming to the evidence of P. Ws. 5 and 8, it is seen that deceased is related to the former as sister-in-law and daughter to the latter. Both of them being post-occurrence witnesses, their evidence does not in any way improve the prosecution case. They came to Puri two days after the occurrence. By then autopsy on the dead body of the deceased was already conducted. There is No. material on record to show how the dead body was disposed of. P. Ws 5 and 8 have also not sated to have seen the dead body of the deceased. On the whole, their evidence shows that accused and deceased had come to Puri and stayed in a Lodge. From a Bengali news paper they came to know that accused murdered the deceased in a Lodge at Pur. This is, No. doubt, a chain in the circumstantial evidence but it is in conclusive in nature having little bearing on the guilt of the accused.

We cannot ignore evidence of P.W. 9 who was a customer of the Lodge in question at the relevant time Though this witness has stated to have seen the Appellant staying in Suite No. B of the Lodge he denied to have any knowledge about the occurrence. As such evidence of P. Ws. 1, 2, 5, 6, 7, 8 and 9 is not clear, consistent and conclusive in- nature. On the whole, it is thoroughly shaky in nature. Even if we believe that the Appellant and the deceased were putting up in Suite No. B of the Lodge, the materials available on record and discussed so far in the foregoing paragraphs do not lead us to a positive conclusion of guilt of the Appellant. Practically there is No. legal-evidence to show that the deceased was last seen together with the accused. Law requires strict proof that such last seen together aspect must be a clinching circumstance to hold the Appellant guilty of the crime. The theory of last seen together as a link to the chain of circumstances cannot be availed of by the prosecution in the present case. As argued by the Learned Counsel for the Appellant, when the employees of the Lodge in question failed to identify the Appellant as the person who was staying with the deceased in Room No. B of the lodge, prosecution case has to be viewed with suspicion. The law is well settled that merely because two persons are found together at a particular time and some time thereafter one of them was found unnaturally dead, the inevitable conclusion is not that the other is the author of the crime. In our opinion, the theory of last seen together with the deceased by itself is not a strong circumstance leading to conviction of the Appellant in a serious case of murder. Case of Dasu '' Jasoda Dei v. State (59) 1985 C.L.T. 331 can be relied upon on the subject. In the reported case, this Court has taken the view that in the absence of other evidence pointing to the guilty of the accused, evidence of the accused and the deceased being last seen together cannot lead to a conclusion of guilty. Gambhir Vs. State of Maharashtra, has been followed by this Court in taking the above view.

We are now concerned with the vital question as to who is the real author of the crime. The materials, such as a Topaz Blade and shirt of the Appellant alleged to be stained with ''O'' group blood belonging to the deceased as per Chemical Examination Report (Ext. 14) have been relied upon by the learned trial Judge for conviction. A topaz blade Was seized by P.W. 10 under seizure list Ext. 9 during the investigation suspecting the same to be weapon of offence. It was sent for chemical examination. But the I.O. did not bother to refer the blade to P.W. 4 who conducted autopsy for medical opinion. Had it been referred to him, he would have opined whether or not, the said topaz blade was used in causing injuries on the victim. The I.O. did not offer any explanation for not referring the same for medical opinion. This being a serious case of murder, he should not have withheld the blade from being referred to the Doctor for his opinion. In such a case, we are bound to draw adverse inference against the prosecution case. Therefore, in the absence of corroborating evidence, we are not inclined to hold the blade as a weapon of offence. As per Ext. 14, ''O'' group blood belonged to the deceased. Shirt of the Appellant is said to be stained with ''O'' group blood. But there is No. evidence to show that the wearing apparels of the deceased and shirt of the accused were sent for chemical examination separately to rule out possibility of the said shirt being stained with blood of the deceased from her clothes. Moreover, blood group of the accused has not been examined. In the case of State of Orissa v. Taka Bijay Kumar and two others 69( 1990) C.L.T. 603 a view has been taken by this Court that blood group is really a strong circumstance which could have pointed out to the complicity of the Respondent (accused), had his blood been examined to exclude that it was not that of ''AB'' group of the deceased. In the present case, investigating agency committed blunder by not getting the blood of the Appellant examined so as to exclude the possible defence that his blood does not belong to ''O'' group. As it has not been done there remains scope to hold that his blood group might be the same as that of the deceased and the shirt which was seized from him might have been stained with his own blood. Therefore, we hold that the chain of circumstantial evidence cannot be said to have been complete in the present case because of non-examination of the blood group of the accused.

In the present case, the learned trial Judge has not applied the settled principle of law laid down by the SC in the case of Iswar Singh v. State of V.P. and Ishwar Singh Vs. State of U.P., . We quote it thus:

It is the duty of the prosecution and No. less of the Court to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes cause aberration in the course of justice.

As per the aforesaid proposition of law in a criminal trial a duty is cast upon the prosecution as well as the trial Court to see that the weapon of offence alleged to have been seized during investigation is shown to the Doctor to opine if all or any of the injuries found on the victim could be accused with the alleged weapon of offence. The seized blade ought to have been produced before the trial court and marked as M.O. for giving opportunity to the defence to cross examine P.W. 4 on this aspect. This, in our opinion, is a blunder committed by the prosecution.

On the discussion of facts and circumstances as made above we hesitate to hold with certainty that injuries found on the victim were caused by Topaz blade. We are also not convinced with proof of seizure of the Topaz blade in the absence of independent corroboration. The conduct of the I.O. in not referring the blade for medical opinion during investigation and non-production of the sale by the prosecution during trial before the Court for marking the same as M.O. render his evidence incredible and untrustworthy. The learned Additional Sessions Judge has committed irregularities by overlooking all the above aspects and features of the case.

We have carefully perused the judgment impugned before us along with the relevant evidence on record. Finding of the learned trial Judge that the Appellant and the deceased after taking liquor during the night of occurrence enjoyed sex and when the latter became unconscious because of intoxication, the former cut her throat by means of the blade (not marked M.O.) as she was extracting money by blackmailing him cannot be accepted in the absence of legal evidence on record.

Therefore, the result is, the learned trial Judge has gone wrong in convicting the Appellant by overlooking all the significant features of the case referred to above and as such we are not in full agreement with him in respect of the findings arrived at by him, particularly when the motive, a compelling force behind commission of the alleged crime and also the other chains in the circumstantial evidence, have not been established beyond all reasonable doubt. That being so, the order of conviction and sentence recorded by him are liable to be and are hereby set aside and the Appellant is acquitted of the charge.