Uansu Majhi vs State Of Odisha

B.P.Routray, J

Heard Mr.Prabhav Behera, learned counsel for the appellant and Mr.Janmajaya Katikia through Video conferencing. The appellant has been

convicted and sentenced to life imprisonment for the offence under Section 302 I.P.C. simplicitor in C.T.Case No.77 of 2014 (Sessions) by the

learned Additional Sessions Judge, Kalahandi at Bhawanipatna.

The appellant and the deceased are husband and wife. The occurrence took place in the house of the informant (P.W.1), who is the brother of the

deceased-wife. Prior to some days of the occurrence, both the deceased and appellant had been to the house of the informant along with their minor

daughter. As per the prosecution case, the appellant killed his wife Kamle Majhi (deceased) by assaulting her at the back of her neck by means of an

axe (M.O.I) on 17.5.2014 at about 8 PM in the courtyard of the house of the informant.

On the report of P.W.1, Kesinga Police Station Case No.48 dated 17.5.2014 was registered and investigation was taken up by the Inspector of Police

(P.W.16). The trial commenced leading to conviction of the appellant as above mentioned.

Admittedly, this is case of circumstantial evidence and no direct eyewitness is there. The conviction has been made by the learned Additional

Sessions Judge, Kalahandi at Bhawanipatna basing upon the evidence of P.Ws.1 to 6 and 8 coupled with medical evidence and statement of the I.O.

At the outset, looking into the nature of death as opined by the Doctor, P.W.14, who conducted the post-mortem examination, the same is

established as homicidal in nature. P.W.14 has stated that the cause of death is due to profuse bleeding and rupture of spinal cord leading to

hypovolemic shock and neurogenic shock. Keeping in view the nature of injury Sl.III (a) and (IV) in the evidence of P.W.14, the death is established

as homicidal in nature, which the appellant and the State are not disputing.

Perusal of the impugned judgment of the learned Additional Sessions Judge, Kalahandi at Bhawanipatna reveals that he has failed to properly

analyze the evidence brought on record.

The prosecution has examined sixteen witnesses in total. P.W.1, the informant and P.W.6 are the husband and wife. P.Ws.2, 3 and 4 are cousin of

the deceased. P.W.5 is the mother of the deceased. P.W.6 is a chance witness who remained present in the house of the informant at the time of

occurrence. P.W.7 is the Sarpanch of the village. P.W.8 is a co-villager. P.W.15 is the Police Constable and seizure witness.

As per the evidences of P.Ws.1, 2, 3, 5 & 6, the occurrence took place at about 8 PM. in the evening and hearing the shout, they came out from

their house and saw the deceased lying dead in the courtyard with injuries. The other part of their evidence is that, they found the appellant standing

there alone and he made the confession before them to have killed the deceased by means of an axe. But this part of their evidence is not found

admissible in view of contradictions. It is admitted by the Investigating Officer, P.W.16 that, admittedly those witnesses have not stated so before him

in course of their examination under Section 161 Cr.P.C. It is clear from the evidence of P.W.16 recorded at para-6 of his cross-examination. Thus, it

is liable to be discarded as inadmissible.

P.W.4 has stated in his evidence that while he was taking meal in his house heard a sound on the ‘Khapar roof’ of his house and when he

came out hearing the sound, saw the axe lying on the roof of his house stained with blood. But this part of his evidence, what he stated in the Court,

was not stated before the Police (P.W.16) during his examination. P.W.16 has admitted at para-6 of his cross-examination that P.W.4 has not stated

so before him. So this also is liable to discarded as inadmissible.

After discarding these relevant portions from the statements of P.Ws.1, 2, 3, 4, 5 & 6, the remaining portion of their evidences are not seen substantial

to establish the charge against the appellant.

Next coming to the evidence of P.W.8, who has stated that on hearing hulla, when he reached at the spot, the deceased was lying dead with cut

injury on the backside of her neck. The appellant has stated before him to have killed the deceased due to her loose character. Hence it is important to

peruse his statement made in the cross-examination. It is admitted by P.W.8 that when he arrived at the spot found the villagers assaulting the

appellant. He further admits that the appellant was assaulted by the villagers and out of fear has stated to have assaulted the deceased.

Law is well settled that before relying upon any extra judicial confession, the same must be tested as true, voluntary and free from any coercion

and inducement. The circumstances as stated by P.W.8 that the local villagers were assaulting the appellant and out of fear he confessed to have

killed the deceased, shows that, the alleged confession of the appellant is involuntary and exerted through fear and pressure.

From the aforesaid discussions, it becomes clear that the story of extra judicial confession as relied by the prosecution cannot be acted upon

against the appellant to sustain his conviction.

Regarding weapon of offence (M.O.I), as per the statement of the I.O.(P.W.16), he seized the same from the spot. Though as per the evidences

of P.Ws.4 and other witnesses, the same was found with blood stained, but upon forensic examination of the same, no blood stain was found from

M.O.I. It is not the case of the prosecution that M.O.I was seized upon discovery given by the appellant. Perusal of Ext.3 i.e., the seizure list with

regard to M.O.I the same is not found free from doubt as no circumstances has been explained. In absence of material evidences, the seizure of

weapon of offence (M.O.I) cannot be said to have established any connection between the appellant and the alleged offence.

In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Supreme Court has elaborated the principles relating to

the circumstantial evidence, which are as follows:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully

established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a

grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved†as was held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra (1973)2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and

'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other

hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must

show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​

In the instant case, the circumstances as evinced from the statement of the witnesses are not forming the chain complete to point guilt of the

appellant. Except the circumstances that the appellant and the deceased are husband and wife and they were present in the house of the informant at

the time of occurrence, nothing more can be traced out from prosecution evidence.

Thus, on scrutiny of the entire evidence, we are of the opinion that the prosecution has failed to establish the guilt of the appellant and failed to

prove the charge against him for lack of sufficient materials. Accordingly, the judgment of conviction and sentence dated 21.1.2016 passed by learned

Additional Sessions Judge, Kalahandi at Bhawanipata in C.T.Case No.77 of 2014(Sessions) is set aside and we direct for acquittal of the appellant.

The appellant be immediately set at liberty, if his detention is not required in any other case.

The appeal is allowed.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.

………………….……………