State of Orissa vs Taka Bijaya Kumar and Others

K.P. Mohapatra, J.—Deceased Noorjahan, true to her name, was a beautiful young unmarried maidan living with her mother P.W. 2 Khatija Bibi and brother P.W. 14 Babuji Khan at Parlakhemundi. She was unfortunate for reasons more than one. She was born deaf and dumb and from childhood suffered from T. B. which remained suppressed on account of medication, but at times she vomitted blood. Her health was, therefore, delicate. Her parents had given liberty to her to move freely in the town, perhaps to comrensate for her disability. This liberty proved fatal unexpectedly in the circumstances narrated below.

Respondent Nos. 1 and 2, Vijaya and Ramesh respectively, two young persons had an evil eye for the deceased. They took into confidence Respondent No. 3 Damayanti said to be a young woman of questionable character so as to procure the deceased in order to enable them to satisfy their lust. The opportunity came in the evening of 22-4-1981 when the deceased alone came to see a movie picture in laxmi Talkies of the town in the first show. She enjoyed the movie picture and was seen coming out of the hall and proceeding towards her house at about 9.00 p. m. She, however, did not reach home.

The member of her family, particularly her mother P.W. 2 became anxious and sent a close relation P.W. 1 and her son P.W. 14 in search of her. They made enquiries at several places and ultimately came inside Rani Padmavati U.P. School and discovered the blood stained langa (a ladies wearing apparel) belonging to the deceased lying near the well inside the school compound. They looked around and saw blood stains on the verand in of the school building. They also noticed a few jasmine flowers floating on the water of the well. The other members of the family, such as, P. W. 2, were summoned to the place and the langa of the deceased was recognised. Foul play was suspected and as P.W. 1 was sent to Parlakhemundi Police Station to lodge F.I.R. (Ext. 1/1) after which investigation commenced.

During investigation, the dead body was brought from inside the well of the school compound and was sent for post mortem examination. Blood stained materials including fearing apparel of the deceased, as well as Respondent Nos. 1 and 2, were seized and were sent for chemical examination and serological test. Services of a tracker dog were utilised for identification of Respondent Vijaya. After close of investigation, charge-sheet was submitted against the Respondents for having committed offences u/s 302, 354 and 321 read with Section 34, as well as for attempt and abatement to commit the offence of rape u/s 376, I.P.C.

The Respondents denied their complicity in the murder and the other offences for which they were charged. Their defence was that the deceased was a chronic T.B. patient and out of frustration she might have committed suicide by jumping into the well.

learned Sessions Judge, Berhampur, on an exhaustive scrutiny of the prosecution evidence one to hold that there was neither direct evidence nor circumstantial evidence of credible nature so as to link the Respondents and make them responsible for the attempted rape and murder of the deceased. Accordingly, he found them not guilty of the charges framed against them and recorded an order of acquittal against which the present appeal was filed.

Mr. Jairaj Behera, learned Additional Standing Counsel, on behalf of the Appellant, and Mr. S.D. Das, learned Counsel appearing for the Respondents, placed the entire prosecution evidence both oral and documentary before us. While Mr. Behera felt different to support the prosecution case on evidence so as to displace the order of acquittal, Mr. Das, submitted that there could at best be the following circumstances for implication of Respondents with the incident:

(1) Respondents Vijaya and Ramesh had an evil eye for the deceased and had previously teased her;

(2) On the date of occurrence after the first show of the movie picture in laxmi Talkies was over the above named Respondents were seen following the deceased along with Respondent Damayanti;

(3) Respondent Ramesh was seen near the school gate by some members of the search party and P.W. 3 Bhima Suar;

(4) Respondent Ramesh told someone that his girl friend had died; and

(5) The blood group of the deceased was ''AB'' and the shirt of Respondent Ramesh was stained with blood of the same group.

Indicating the circumstances, Mr. Das urged that all of them have no support of evidence so as to form a chain of circumstances pointing to the guilt of the Respondents for having committed the murder of the deceased. It is necessary to examine the evidence in, the light of the contentions made above.

Learned Sessions Judge referring to the evidence of the Medical Officer (P.W. 16), the post mortem report and her several opinions held that the deceased had not been raped, had the history of suffering from T. B. and was at times vomitting blood. At the time of occurrence, when force was applied to her, she vomitted blood and probably became unconscious. At a stage of unconsciousness, she was thrown into the water and was drowned. So, the reason for her death was asphyxia. This finding was not challenged during hearing.

Now coming to the evidence, P.W. 1 who searched for the deceased and lodged F.I.R. stated that while he was entering inta the school premises P.W. 3 Bhima Suar came and told him that Respondent Ramesh had gone away through the school gate. He, however, admitted that he did not make this important statement in F.I.R. P. W. 2, the mother of the deceased stated that she saw Respondent Ramesh three to four cubits away from the gate of the school and saw another person jumping the school compound and going away. She could not identify him. She did not however, make such statement before the Investigating Officer. P.W. 3 Bhima Suar stated that he found someone coming out of the gate of the school. He could not identify him. He was declared hostile by the prosecution, because during investigation he had stated before the Investigating Officer that he had seen Respondent Ramesh leaving the school compound through the gate in or about the time of occurrence, but he replied from the statement. He later admitted that he stated to the fermle folks that a person like Respondent Ramesh was coming out, of the school. Neither the earlier nor the later statement conclusively supports the prosecution case to the effect that Respondent Ramesh was seen by this witness in or about the time of occurrence leaving the school premises in which the offence was committed. By his own evidence, this witness made himself unreliable. P.W. 4 stated that she was threatened by Respondent Damayanti that unless she would listen to her, she would be thrown into the well and killed like the deceased. She did not, however, state the reason why Respondent Damayanti held out the threat to her, because she was not asked to do anything or any particular work. Her evidence is, therefore, of no avail to the prosecution. P.W. 5, a cycle repairer stated that while he was in the shop at the time when the first show of the cinema was going to be over, he found three male persons including Respondents Vijaya and Ramesh talking to Respondent Damayanti on the road at a distance of about fifteen yards from his shop. It was between 9.00 p. m. and 1000 p.m. He could not hear their talk distinctly. He also saw the deceased going on the road in front of his shop. She was followed by Respondent Damayanti and she was herself followed by Respondents Vijaya, Ramesh and anther. They all went through Gandhi School road which is also known as Parsuram School road. His evidence has been disbelieved by the learned Sessions Judge on the grounds stated in the judgment as follows:

...The witness when examined by the I.O., on the first occasion did not disclose the details of what he had known in the occurrence night. He explains that as he was not asked by the I.O. the details of the occurrence he did not divulge (the details). Assuming that the explanation is acceptable and he did not give out, before the I.O. the details of what he had known it was expected of him to narrate the details before the Magistrate who had examined him u/s 164, Code of Criminal Procedure. He made a statement before the Magistrate first without implicating accused Section Ramesh and T. Vijaya Kumar and came out of the Court room. Subsequently he approached the Magistrate and made a voluntary statement that accused Ramesh and Vijaya Kumar along with accused Damayanti had followed deceased Noorjahan. It is admitted by the witness in cross-examination that no oath was administered to him when he made the additional voluntary statement before the Magistrare. So technically speaking the additional statement was not recorded according to the provisions of Section 164, Code of Criminal Procedure and it cannot be admitted into evidence. In other words, the omission in his first statement before the Magistrate regarding the complicity of accused Ramesh and Vijay Kumar and his statement in Court implicating these two accused persons are quite contradictory and such contradiction renders the witness unreliable. Over and above, even if the additional voluntary statement rude by the witness before the Magistrate is accepted as admissible and true, the whole effect of the testimony of the witness is that he had seen deceased Noorjahan going on the road in front of his shop after the first show of cinema was over in the occurrence night and she was followed by the accused persons on that road. He does not say that the three accused persons along with deceased Noorjahan had gone to the Rani Padmavati U.P. School house where the occurrence had taken place. So the evidence of this witness leaves a gap between the previous conduct of the accused persons and the death of deceased Noorjahan.

The aforesaid reasons are unexceptionable. So without any corroborating factor, it would be unsafe to accept his evidence. P.Ws. 6, 7, 8, 11 and 12 did not support the prosecution and were declared hostile and crossexamined. Of them, P.W. 7 was a key witness who had stated before the Investigating Officer that she had seen the deceased being forcibly taken inside the school compound by the Respondents. On her turning hostile, such important evidence was not available to the prosecution. The evidence of P.Ws. 9 and 10 is not very material. But P.W. 11 though declared hostile admitted that he had stated u/s 164, Code of Criminal Procedure that while he was returning from Jaya Cinema Hall at about 12-30 a.m. or 1.00 a.m. in the night Respondent Ramesh met him on the way and told him that his girl friend had been murdered and he asked him if something would happen to him. Even if this statement is accepted to be true, yet it does not implicate Respondent Ramesh firmly, but indicates strong suspicion. The evidence of P.W. 13 is not material except that he stated that about twenty days before the occurrence, the deceased was teased by Respondent Ramesh for which she abused him. P.W. 14, the brother of the deceased stated that P.W. 3 Bhima Suar told him that he had seen Respondent Ramesh going from the school compound and that on a previous occasion he had seen him teasing the deceased. But he did not make this important statement before the Investigating Officer and so contradicted himself. P.W. 15; is the suizure witness, but stated that while search of the school compound was being made, P.W. 3 came and told that Respondent Ramesh was going away from the school gate towards the road. Reference has already been made that P.W. 3 resiled from such a statement. Even if such a statement was made, no efforts seem to have been made to catch hold of Respondent Ramesh near about the spot itself. So, the evidence of this witness is of no avail to the prosecution. The rest of the prosecution witnesses took part in the investigation and stated nothing either about the occurrence or to supplement to the chain of circumstances.

Out of the circumstances referred to above, three remained outstanding. They were, (i) the Respondents were seen following the deceased; (ii) Respondent Ramesh was seen escaping from the school compound through the gate; and (iii) his shirt contained blood of ''AB'' group which was also the blood group of the deceased. The first circumstance, i.e., the theory of Last seen together with the deceased by itself is not a strong circumstance which will lead to the conviction of the Respondents in a serious case of murder, In support of the above proposition presence may be made to two decisions of this Court reported in 59 (1985) CLT 331 Dasu Jashoda Dei v. State and 1988 (I) O.C.R. 669 Trilochan Panika v. State. Respondent Ramesh being seen escaping from the school compound through the gate was not satisfactorily proved as has been already discussed. In this connection, reference may be made to Awadhi Yadav and Another Vs. The State of Bihar, in which it was held that before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable duobt. With regard to the blood group, it was really a strong circumstance which could have pointed to the complicity of Respondent Ramesh, had his blood been examined to exclude that it was not of ''AB'' group. Here the investigating agency committed a blunder. It was its duty to get the blood of Respondent Remesh examined so as to exclude the possible defence that his blood did not belong to ''AB'' group. As it was not done, there remained 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.

There was some argument with regard to evidence relating to identification of Respondent Vijaya by a tracker dog. But such evidence is not admissible as ruled in AIR 1978 S.C. 263 Abdul Razak Murtara Safadar v. State of Maharashtra where it was held as follows:

The tracker dog''s evidence cannot be like and to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever there are thought processes there is always the risk of, error, deception and even self-deception. In the present state of scientific knowledge evidence of dog tracking, even if admissible is not ordinarily of much weight.

Lastly, it is necessary to say that there may be gave suspicion about the complicity of the Respondents. But such suspicion cannot take the place of legal proof Section Padan Pradhan Vs. State of Orissa, . Further, we have been called upon to decide the appeal against an order of acquittal and the jurisdiction is not only limited but has to be very cautiously exercised, as has been said in one of the latest decisions reported in AIR 1988 S.C. 1985 Awadhesh and Anr. v. State of Madhya Pradesh. Having regard to the principles reiterated therein, we are of the view that the host of the case before us are not such that 3 completely different view from that of the learned Sessions Judge is possible. On the other hand, there is sufficient scope to hold that the views expressed by him are so reasonable that it is not possible to reject the same. Therefore, we find ourselves unable to reverse the order of acquittal, although it was a ghastly case of murder of an innocent girl by and at the instance of persons of immoral and wicked character.

Before parting with the else, we feel constrained to observe that an innocent life was lost and the perpetrators of a heinous crime have gone unpunished. They are still at large and are a constant threat to the society. All this was due to important witnesses turning hostile to the prosecution during trial. The Code of Criminal Procedure and the Indian Evidence Act are imdequate in this respect. Taking advantage of the lacuna therein, criminals of the worst order escape from the clutches of law by gaining over important and material witnesses either for gain, promise or threat. Law needs change and this is the high time so as to get the society rid of criminals as far as practicable.

For the reasons stated above, the appeal is dismissed.

V. Gopalaswamy, J.

I agree.

Appeal dismissed.