State of Orissa vs Indramani Saraf and Others

This Government Appeal arises out of the judgment of acquittal passed by the learned Additional Sessions Judge, Bargarh in Sessions Trial No. 142/19 of 1995.

A compendium of the prosecution case is that the deceased Hemanta is the son of informant (P. W. 1). He had illicit love affair with one Mando, the daughter of Kailash Saraf (Respondent No. 2) and sister of other two Respondents. Such relationship between Mando and the deceased Hemanta was not liked by the Respondents. The Respondents had threatened to finish Hemanta, if he persists with the relationship. At about 5 a.m. on 19-12-1994, the deceased Hemanta was found lying in front of the house of one Okila Sahu (not examined) on the village road. At that time, there was only a ''chadi'' and ''ganji'' on his body. He was taken to his house for giving treatment of fomentation with fire, as it was suspected that he might have col-

*Against judgment of S.K. Pradhan, Addl. Sessions Judge, Bargarh, D/-20-3-1997.

lapsed due to execessive cold. But in course of such treatment, he was found to be dead. The dead body was cremated by the family members of the deceased Hemanta. After cremation of the dead body, the informant (P.W. 1) came to know about the fact that there were marks of rope on the neck, belly and feet of his son (deceased Hemanta). It was suspected that he might have been murdered for his love affair with Mando. Being suspicious about the foul play of the Respondents, P.W. 1 lodged the F. I. R. in the village when the I. O. (P. W. 9) came to the village on receipt of information from Grama Rakhi Mohana Bariha about death of Hemanta under suspicious circumstance and disposal of his dead body. On the basis of the F. I. R. the I. O. (P.W.9) registered the case. On completion of investigation, charge-sheet was filed implicating the Appellants for commission of offence punishable under Sections 302, 201 and 34 of the Indian Penal Code.

The defence plea is one of complete denial and false implication.

The prosecution has examined ten witnesses to prove the charge. P. W. 1 is the informant. P. W. 2 is the nephew of P. W. 1, who had seen the rope marks on different parts of the body of the deceased. P. W. 3 is the witness, who saw Indramani (Respondent No. 1) and Jugal (Respondent No. 3) throwing the dead body of the deceased in front of the house of Okila Sahu. P. W. 4 is the witness, who saw the deceased Hemanta last in the company of Jugal Saraf (Respondent No. 3) in the night preceding next the date of occurrence. P. Ws. 5, 6 and 8 are the witnesses to the circumstances like presence of rope marks on the dead body of the deceased. P. W. 7 is the witness to the factum of threatening given by Kailash (Respondent No. 2) to finish Hemanta (deceased). P. Ws. 9 and 10 are the Investigating Officers.

Admittedly, the case is based entirely on circumstantial evidence, and there is no eye witness to the occurrence. The dead body of the deceased admittedly has been cremated. There is no evidence to prove the factum of homicidal death of the deceased except the oral evidence of the witnesses. The learned trial Court, on thorough and careful examination of the materials on record, has come to the finding that the evidence adduced by the prosecution is not sufficient to prove the charge.

Learned Additional Government Advocate submits that learned trial Court having disbelieved P. Ws. 3, 4, 6 and 7 on improper considerations, the finding of acquittal reached by the learned trial Court becomes vulnerable.

Learned Counsel for the Respondents on the other hand supports the impugned judgment.

Learned trial Court in paragraph 8 of the judgment has outlined the circumstances relied on by the prosecution, which are as follows:-

(1) That Hemanta Bariha is dead and his dead body was found lying in front of the house of Okila Sahu.

(2) That there was illicit love relation between the deceased Hemanta Bariha and Mando the daughter of the accused Kailash Saraf and sister of the other two accused persons.

(3) That accused Kailash Saraf a month prior to the occurrence sent words of threatening to kill Hemanta, if he will continue such relation with his daughter, through P. W. 7 Jayalal Bariha.

(4) That accused Jugal was last seen with deceased Hemanta by P. W. 4 Iswar Bariha while they were going from the house of the deceased to the house of the accused persons.

(5) That accused Indramani and Jugal were found carrying a man from their house and proceeding towards the tank side on the village road in the early morning of 19-12-1994 when it was detected by Bala Ghingra and at his sight these two accused persons threw away the dead body and went away and the dead body, on verification by P. W. 3 Bala Ghingra was found to be that of deceased Hemanta Bariha having injury of rope marks on the neck, belly and legs.

(6) That accused Kailash Saraf instructed the family members of the deceased including the informant not to report the matter at the P. S. as in that case they would be put to trouble and harassment by police and insisted them to cremate the dead body soon.

(7) That accused Kailash Saraf four days after the occurrence requested P. W. 7 Jayalal Bariha through whom he had sent words of threatening to kill Hemanta not to disclose the same to anybody and touched his feet to save him.

(8) That the Investigating Officer during investigation found blood stains in the house of accused Kailash Saraf.

It is well settled in law that so far as circumstantial evidence is concerened, it involves two stages of proof. The first stage is proof of basic facts and the second stage is the stage of inference to be drawn by the Court from proved basic facts. It is further well settled in law that the proved basic facts should form a chain unerringly pointing to the guilt and guilt only of the accused without being compatible in any manner to his innocence.

With the aforesaid law and background, we shall proceed to discuss the contentions raised by learned Additional Government Advocate.

The last circumstance relied on by the prosecution is the seizure of blood stained earth from the bed room of Manorama Saraf and also from the bed room of Indramani Saraf (Respondent No. 1) besides seizure of a gunny bag suspected to be stained with blood. All the seizures were made vide Ext. 3, by the I. O. (P. W.9). The chemical examination report Ext. 8 shows that no opinion could be given by the Chemical Examiner regarding grouping of blood, as the samples were deteriorated. There is also nothing on record to show that the deceased had sustained bleeding injuries of any sort or there were dried blood marks on any part of his body. There being no evidence to come to a conclusion that the blood stains found in the house of the Respondents were that of the deceased, this circumstance against the Respondents cannot be held to have been proved.

Learned Addl. Govt. Advocate relies heavily on the evidence of P. W. 3, whose evidence, as submitted by learned Addl. Govt. Advocate, would have proved circumstance No. 5, if the same would have been appreciated properly. As found from the discussion in the impugned judgment, learned trial Court has thoroughly discussed the evidence of P. W. 3. The occurrence happened in the early morining of 19-12-1994. It was the dawn hour and there must have been still darkness at about 5 a.m. in the month of December. Though P. W. 3 was the witness to the most important circumstance of throwing of the dead body of Hemanta, kept in a sack on the village road in front of the house of Okila Sahu (not examined), he did not disclose such an important fact before any of the villager or before the I. O., who visited the spot village at 5 p.m. on 20-12-1994 and on many occasions thereafter. Only on 24-12-1994 on being called by the police, P. W. 3 gave the statement recorded u/s 161, Code of Criminal Procedure implicating Indramani Saraf (R. 1) and Jugal Kishore Saraf (R.3) to have thrown the dead body on village road in front of the house of Okila Sahu. If the I. O. (P. W.10) and P. W. 3 are to be believed, statement of P. W. 3 was recorded on 24-12-1994 and there was sufficient material before the I. O. (P. W. 10) on 24-12-1994 for implicating the Respondents. The I. O. (P. W. 10), however, has testified that he did not arrest the Respondents till 28-12-1994, as he did not find any material to arrest them. Such evidence of the I. O. (P. W. 10) is indicative of the fact that date of examination of P. W. 3 u/s 161, Code of Criminal Procedure has been antedated. The explanation by P. W. 3 regarding non-disclosure of the events seen by him has been discussed in detail by learned Court below and we are one in our view with the reasonings supplied by learned trial Court in rejecting /disbelieveing such explanation. Learned trial Court with much pain has also discussed in great detail the circumstances which militate against veracity of the testimony of P. W. 3. In view of all the aforesaid facts, we do not find any reason to differ from learned Court below so far as its finding on circumstances No. 5 is concerned.

P. W. 4, on whose evidence reliance is placed by the learned Addl. Govt. Advocate, is a witness to prove circumstance No. 4 supra. It is the evidence of P. W. 4 that he saw deceased Hemanta last in the company of Jugal Kishore Bariha (R. 3). P. W. 4 saw both Jugal Kishore Bariha (R. 3) and deceased Hemanta talking near betel shop of Bhuski (not examined). He (P. W.4) purchased a ''pan'' from the shop and returned back to his house. Thereafter he sat in the ''pinda'' of his house. He saw deceased Hemanta and Jugal (R.3) going across his house towards the house of the deceased. Thereafter deceased Hemanta and Jugal (R.3) came from the house of the deceased and went towards the house of Jugal (R.3). He (P.W.4) asked Hemanta as to where they were going. Hemanta replied that on being invited by Jugal (R.3) he is going to the house of Jugal (R.3) to take his food. He (P.W.4) sat in the ''pinda'' till mid night but deceased Hemanta did not return to his house.

From paragraph 7 of the testimony of P. W. 4, it is found that he has specifically testified that for three days he did not disclose about the aforesaid fact before others. He was asked about three to four times as to whether he was examined by the police. He specifically denied to have been examined by the police. Again he testified that he has not disclosed the aforesaid facts to anybody, but disclosing this fact in the Court during his examination. Such testimony of P. W. 4 besides other reasonings by learned trial Court to disbelieve him (P. W. 4) is sufficient in our view to cast doubt on the veracity of this witness. We, therefore, do not find any justifiction to differ from the learned trial Court so far as acceptance of the evidence of this witness (P. W.4) is concerned.

P. W. 7 is a witness to circumstance Nos. 3 and 7 supra. P. W 7 is the elder brother of the father of the deceased. One month prior to the incident Kailash Saraf (R. 2) met him and told him that his nephew Hemanta has ruined his daughter and he should forbid deceased Hemanta not to mix with his daughter. He further told him that he is so annoyed that he shall finish Hemanta. After four days of the occurrence, Kailash Saraf (R. 2) again called him (P. W.7) to his house and told him not to disclose about the threatening given by him one month back before anybody. This witness is a close relation of the deceased. He saw mark of ropes on different parts of the dead body. He had knowledge about threatening given by Kailash Saraf (R.2) a month back. In spite of all such facts he did not disclose before anybody about the fact and allowed the dead body to be cremated by his relatives. He disclosed about the aforesaid facts after his examination by the police. Discussing his evidence in its entirety and other materials on record, which militates against truthfulness of this witness, learned trial Court having disbelieved him, we do not find any justification to take a different view.

P. W. 6, on whose evidence learned Addl. Govt. Advocate relies, is a witness to circumstance No. 6. Besides P. W. 6, P. W. 1, P. W. 2, P. W. 4, and P. W. 5 are the witnesses to the aforesaid circumstances, which is, to the effect that Kailash Saraf (R. 2) instructed the family members of the deceased for early cremation of the dead body. So far as the informant is concerned, he (P. W. 1) has been contradicted on this aspect inasmuch as in the F. I. R. it has been, specifically stated that on being asked by the villagers, dead body of Hemanta was cremated. There is evidence on record to show that there could not have been cooking in any house of the village until the dead body was cremated. There is also evidence to show that it is the ''Gountia'' of the village, who persuaded the family members of deceased Hemanta to cremate the dead body. Further, Kailash (R.2) being not a habitual criminal, could not have come to the house of deceased Hemanta to console his family members after killing him in the previous night without any manifestation of unusual behaviour, which is usually seen in a die hard criminal. Regard being had to the aforesaid facts besides the grounds on which learned trial Court has held this circumstance to be not proved, we do not have any justification to differ from the view of the learned trial Court.

So far as circumstance No. 2 is concerned, none of the witness had direct knowledge about the love affair between deceased Hemanta and Mando. Some of the witnesses came to know about such fact after cremation of the dead body of Hemanta. There is nothing on record to show that at any point of time there was protest by the Respondents to the conduct of the deceased in keeping relationship with Mando. Learned trial Court on thorough examination of the evidence on record, has rightly held this circumstance to be not proved.

If circumstance Nos. 2 to 8 are held to be not proved, there is nothing from which inference of guilt of the Respondents can be drawn. We, therefore, do not find any reason to interfere with the impugned judgment.

The Govt. Appeal is accordingly dismissed. The Respondents be discharged of the bail bonds, if they are on bail in this appeal.