S.K. Sahoo JUDGMENT
S.K. Sahoo, J.
1. The appellant Rohita Bhuniya faced trial in the Court of learned Ad hoc Addl. Sessions Judge (Fast Track), Aska in Sessions Case No. 07 of 2005/Sessions Case No. 195 of 2005 GDC for offences punishable under sections 498-A/302 of the Indian Penal Code on the accusation that he being the husband of Baby Bhuniya (hereafter 'the deceased') subjected her to cruelty by demanding dowry since the date of their marriage till her death on 20.10.2004 at village Olamba Nua Balisahi and committed murder of the deceased.
The appellant was found guilty under both the offences and accordingly convicted thereunder and sentenced to undergo imprisonment for life and to pay a fine of Rs. 4000/-, in default, to undergo further period of R.I. for one year under section 302 of the Indian Penal Code and to undergo R.I. for one year and to pay a fine of Rs. 1000/-, in default, to undergo further period of R.I. for three months for the offence under section 498-A of the Indian Penal Code and both the substantive sentences were directed to run currently.
2. The prosecution case, as per the first information report dated 20.10.2004 lodged by Ranka Bisoi (P.W. 8) of village Gopalpur before the officer in charge of Badagada police station is that the marriage between the deceased and the appellant was solemnized four days after Vaisakha Amavasya. At the time of marriage, the informant presented some articles to the bridegroom as per his own capacity. After the marriage, the appellant and the other in-law family members like mother-in-law, father-in-law and aunt-in-law of the deceased started torturing her physically and mentally. For the last time when the deceased was assaulted by the appellant, her mother-in-law and aunt-in-law, she was pregnant for five months. On 20.10.2004 morning the informant got the message that the in-law family members of the deceased had killed her and they were going to cremate her dead body. Hearing such shocking news, the informant along with others rushed to the house of the appellant and did not allow the cremation of the deceased to take place.
On the basis of such first information report, Badagada P.S. Case No. 89 of 2004 was registered under sections 498-A/302/34 of the Indian Penal Code by the officer in charge namely Uttam Kumar Mohanty (P.W. 14) who also took up investigation of the case. During course of investigation, he examined the informant, sought for the requisition of an Executive Magistrate for the purpose of holding inquest over the dead body and accordingly, the inquest report (Ext. 2) was prepared. The dead body was sent for post-mortem examination to F.M. & T. Department, M.K.C.G. Medical Collage and Hospital, Berhampur. P.W. 12 Dr. Sachidananda Mohanty, Associate Prof. of F.M. & T. Department conducted autopsy and opined the cause of death of the deceased as asphyxia resulting from compression of neck and it was further found that the deceased was pregnant at the time of her death and the duration of her pregnancy was about three to five months. The investigating officer (P.W. 14) visited the spot, prepared the spot map Ext. 9, seized the wearing apparels of the appellant on his production in presence of the witnesses under seizure list Ext. 3/1. He also seized some articles from the house of the appellant under seizure list Ext. 4/1 and gave it in the zima of the informant (P.W. 8). The appellant was forwarded to the Court on 21.10.2004. P.W. 14 seized the wearing apparels of the deceased and her ornaments which were collected by the doctor and handed over to the constable under seizure list Ext. 10. The ornaments of the deceased were handed over to the informant under zimanama Ext. 11. P.W. 14 received the post mortem report and made a prayer before the J.M.F.C., Aska for sending the exhibits to R.F.S.L., Berhampur and accordingly, those were sent for chemical analysis. On completion of investigation, P.W. 14 submitted charge sheet on 15.02.2005 under sections 498-A and 302 of the Indian Penal Code against the appellant.
3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under sections 498-A/302 of the Indian Penal Code on 19.07.2005 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
4. During course of trial, in order to prove its case, the prosecution examined fourteen witnesses.
P.W. 1 Pramata Abhyashankar Sastri is the scribe of the F.I.R.
P.W. 2 Judhistra Dakua was the barber who participated in the marriage ceremony of the deceased with the appellant.
P.W. 3 Bhagabana Bhuniya was the cousin brother of the appellant. He stated that the family of the appellant consisted of the appellant, his parents and two sisters. He was declared hostile by the prosecution.
P.W. 4 Muna Panigrahi did not support the prosecution case for which he was declared hostile.
P.W. 5 Susanta Sahu also did not support the prosecution.
P.W. 6 Banchanishi Swain is the witness to the inquest over the dead body of the deceased.
P.W. 7 Hadu Gouda stated that that dead body of the deceased was lying on the front verandah of the house of the appellant and at that time the mother of the appellant was alone in the house.
P.W. 8 Ranka Bisoi was the father of the deceased and he stated about the complain made by the deceased against the appellant during her visit. He is the informant in the case and also a witness to the inquest as per the inquest report Ext. 2 and received the articles under zimanama.
P.W. 9 Musha Bisoi is the mother of the deceased and she stated about the physical torture to the deceased by the appellant. She stated to have rushed to the house of the appellant getting message about the health condition of the deceased.
P.W. 10 Subash Chandra Swain is the brother of the deceased who stated to have seen the deceased lying dead on the verandah of the house of the petitioner.
P.W. 11 Bulu Swain is a formal witness.
P.W. 12 Dr. Sachidananda Mohanty conducted autopsy over the dead body of the deceased and he proved his report Ext. 6.
P.W. 13 Dr. Rajesh Kumar Sahu was the Asst. Surgeon, F.M. & T. Department, M.K.C.G. Medical Collage and Hospital, Berhampur who assisted P.W. 12 in conducting autopsy over the dead body.
P.W. 14 Uttam Kumar Mohanty was the investigating officer.
The prosecution exhibited fourteen documents. Ext. 1 is the F.I.R., Ext. 2 is the inquest report, Exts. 3/1, 4/1 and 10 are the seizure lists, Exts. 5 and 11 are zimanamas, Ext. 6 is the post mortem report, Ext. 7 is the command certificate, Ext. 8 is the dead body challan, Ext. 9 is the spot map, Ext. 12 is the forwarding letter for chemical examination, Ext. 13 is the forwarding report and Ext. 14 is the chemical examination report.
5. The defence plea of the appellant was one of denial.
6. The learned trial Court after assessing the evidence on record has been pleased to hold that there is no manner of doubt that the deceased suffered a homicidal death. It is further held that admittedly there is no direct evidence showing that the deceased was assaulted or throttled by the appellant in the relevant night and the case solely rests on circumstantial evidence. It is further held that the evidence of P.Ws. 8, 9 and 10 that the deceased was murdered by the appellant being throttled and there were marks of swelling on the neck of the deceased get adequate corroboration from the evidence of doctor (P.W. 12) and from the P.M. report vide Ext. 6 and also from inquest report Ext. 2. It is further held that in absence of examination of any other witness, it cannot be a ground to disbelieve the evidence of P.Ws. 8, 9 and 10 which are found to be cogent, consistent and trustworthy and accordingly, the culpability of the appellant under section 498-A of the Indian Penal Code has been well proved. It is further held that the non-explanation by the appellant regarding homicidal death of the deceased is an additional link to the chain of circumstances against the appellant. It is further held that after the post mortem examination, the wearing saree of the deceased was seized by the I.O. and it was sent for chemical examination and was found to be stained with human blood of 'A' group. It is further held that during his examination under section 313 of Cr.P.C., the appellant failed to explain as to how his wearing lungi was stained with human blood of 'A' group which was also found in the saree of the deceased. Learned trial Court further held that the link in the chain of events is found to be complete and it unequivocally points to the guilt of the appellant excluding the hypothesis consistent with the innocence of the appellant.
7. Mr. Bhabani Sankar Das, learned counsel appearing for the appellant contended that the evidence of P.Ws. 8, 9 and 10 on which the learned trial Court mainly placed reliance is not so clinching so as to come to the conclusion that the appellant has committed murder of the deceased and when the check lungi stated to have been seized from the appellant on 21.10.2004 was sent for chemical examination on 10.02.2005 and there is no evidence as to in what condition the lungi was kept after its seizure till it was forwarded for chemical examination, no reliance can be placed on the finding of the chemical analyst and therefore, it cannot be said that the prosecution has successfully established the case against the appellant beyond all reasonable doubt.
Mr. Karunakar Nayak, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that when the deceased met with a homicidal death and at a time when she was pregnant for about three to five months as per the report of the doctor and the appellant was staying with the deceased at the relevant point of time and he has failed to explain under what circumstances the death took place coupled with his previous conduct in demanding money and torturing the deceased, makes the chain of events complete and therefore, the appeal should be dismissed.
8. Now it is to be seen how far the prosecution has established that the death of the deceased was homicidal in nature.
In order to establish such aspect, apart from the inquest report (Ext. 2), the prosecution has examined doctors (P.W. 12 and P.W. 13) who conducted autopsy over the dead body on 21.10.2004 at F.M. & T. Department, M.K.C.G. Medical College and Hospital, Berhampur. The doctors found a contusion over the right mandible area, the neck tissue areas surrounding was found to be deeply congested. The uterus was carrying a female foetus of three to five months. The cause of death was opined to be asphyxia resulting from compression of neck. The post mortem report has been marked as Ext. 6.
The learned counsel for the appellant has not challenged the evidence of P.W. 12 or the findings in the post mortem examination report (Ext. 6).
The learned trial Court has also arrived at a conclusion that the deceased suffered a homicidal death.
After perusing the evidence on record, the post mortem examination report (Ext. 6) and the statement of P.W. 12 Dr. Sachidananda Mohanty, I am of the view that the prosecution has proved the death of the deceased to be homicidal in nature and therefore, the finding of the learned trial Court on that score is justified.
9. There is no dispute that the prosecution case rests upon circumstantial evidence. The learned trial Court has jotted down the circumstances as follows:-
(i) Assault and torture to the deceased by the accused prior to the incident;
(ii) The deceased was staying with the accused and no explanation was offered by him regarding the death of the deceased;
(iii) The wearing apparel i.e. lungi of the accused which was seized by the I.O. (P.W. 14) on examination by the chemical examiner found to be stained with human blood with that of the blood group found in the saree of the deceased.
First Circumstance:
The learned trial Court has mainly placed reliance on the evidence of P.Ws. 8, 9 and 10 for adjudicating this circumstance.
P.W. 8 Ranka Bisoi is the informant of the case and he was the father of the deceased. Neither in the F.I.R. nor in his evidence, he has stated anything regarding demand of dowry by the appellant prior to the marriage with the deceased rather he has stated in the F.I.R. that whatever articles were given at the time of marriage were as per his own capacity. P.W. 8 stated in his evidence that the appellant was living in a common mess with his parents, two sisters and the deceased and the deceased died in the house of the appellant six months after the marriage. He has further stated that during the visit of the deceased, she was complaining that the appellant was assaulting her being drunk. However, he has stated that when ten to twelve days prior to the occurrence, he along with his daughter Ahalya had been to the house of the appellant to give cakes to the deceased as by that time she was carrying for five months, at that time the deceased was hale and hearty. Therefore, there is no evidence of either any demand of dowry or any torture to the deceased soon before her death by the appellant. There is no evidence of any complain against the appellant by the deceased when on the last occasion, her family members visited her in the house of the appellant. P.W. 8 has further stated that he has not reported either to the police or to their Kula Committee regarding the previous assault/torture meted out to the deceased by the appellant. He has further stated that he has not seen assault on the deceased by the appellant and his third son namely Rama has married to the sister of the appellant. Therefore, when the sister of the appellant had married to the brother of the deceased and any torture to the deceased is likely to have a serious repercussion on the appellant's sister, I am of the view that the evidence of P.W. 8 in itself is not sufficient to arrive at a conclusion that the deceased was subjected to assault and torture by the appellant prior to the incident.
P.W. 9 Musha Bisoi is the mother of the deceased and her evidence is also silent regarding any demand of dowry by the appellant either prior to the marriage or after marriage. She has stated that during her visit, the deceased had complained before her that the appellant was addicted to liquor and gambling and that he used to assault her. She further stated that on the date of occurrence, Jhumpi who was the mother-in-law of the deceased, Asha and Manjulata, the two sister-in-laws of the deceased and the appellant were present in the house. She admits that she had not reported to any person or authority about the addiction of liquor and gambling by the appellant and that the appellant was torturing the deceased. She has stated that she cannot say the names of the persons who told her that the appellant killed the deceased. Therefore, the evidence of P.W. 9 is also not sufficient to arrive at a conclusion that the deceased was subjected to assault and torture by the appellant prior to the incident.
P.W. 10 Subash Chandra Swain is the elder brother of the deceased and he has stated that at the time of marriage, they had given presentation of ornaments and other household articles to the deceased and a gold ring to the appellant. He has further stated that the appellant and the deceased were residing along with other family members in one house. He further stated that the deceased complained before him about the assault made on her by the appellant but he advised her to bear with the appellant with a promise to look into the matter. He has stated that he has not reported the matter to police regarding the complain made by the deceased. He has further stated that he had not complained regarding the torture and harassment meted out to the deceased to anyone of the village or member of Kula Committee and that there was no demand of dowry by the appellant at the time of marriage. Thus the evidence of P.W. 10 is also not sufficient to arrive at a conclusion that the deceased was subjected to assault and torture by the appellant prior to the incident.
When there is no evidence of demand of dowry prior to the marriage, at the time of marriage or after marriage and the appellant's sister had married to the deceased's brother and when none of the family members of the deceased complained against the conduct of the appellant towards the deceased at any point of time either before the villagers or before the members of Kula Committee and it further appears that the deceased was hale and hearty few days prior to the date of occurrence when her family members visited her in the house of the appellant and there is no evidence of any torture or cruelty on the deceased thereafter, I am of the view that the prosecution has failed to establish the first circumstance.
Second Circumstance:
There is no dispute that the deceased was staying in the house of the appellant when she died and she met with a homicidal death but the evidence on record indicates that the appellant was staying in a joint family and the dead body was found on a verandah under the open sky. The other family members of the appellant are not the accused persons in the case. Therefore, it is very difficult to arrive at the conclusion of guilt of the appellant on the basis of the nature of materials available on record so far as the second circumstance is concerned.
Third Circumstance:
P.W. 14 stated about the seizure of a check lungi on the production of the appellant under seizure list Ext. 3/1 on 21.10.2004. His evidence is silent as to in what condition the lungi was kept after its seizure. The forwarding report of lungi which has been marked as Ext. 13 is dated 10.02.2005 and it is also silent that it was kept in sealed condition. No doubt the check lungi of the appellant and saree of the deceased were found to have contained human blood of group 'A' but there is nothing on record about the blood groups of the appellant and the deceased. When there is inordinate delay in sending the lungi seized from the appellant for its chemical examination and there is no evidence of its safe custody in sealed condition during such period and there is no evidence that the lungi and the saree were packed separately after its seizure, sealed and in that condition it was sent for chemical analysis, the finding of the chemical analyst cannot be utilized against the appellant inasmuch as tampering with the same cannot be ruled out. In spite of several judicial pronouncements as to how the material objects are to be kept in safe custody and how it is to be sent for its chemical analysis without any unnecessary delay, the investigating officers in most of the cases are not complying with the same and thereby the accused is taking advantage of such lacunas. It is high time that proper training and instruction should be given to the police officials in that regard for fair investigation.
10. Law is well settled that fouler the crime, the higher should be the degree of scrutiny. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinization of the evidence is necessary and it is the duty of the Court to see that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature and all the links in the chain of events must be established clearly beyond reasonable doubt and established circumstances should be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. Whether the chain of events is complete or not would depend on the facts of each case emanating from the evidence. The Court should not allow suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed away by emotional consideration (Ref:- Balwinder Singh v. State of Punjab, MANU/SC/2012/1995 : 1995 Supp (4) Supreme Court Cases 259).
11. Analysing the evidence on record meticulously, it is found that the circumstances brought on record by the prosecution have not been fully established and there is no cogent and reliable evidence against the appellant to have committed the crime. The absence of an apparent motive is certainly a relevant factor to be considered in favour of the appellant particularly when the case is based on circumstantial evidence. The reasoning assigned by the learned trial Court in convicting the appellant seems to be based on conjecture and suspicion which have no place in the matter of legal proof of guilt of the appellant in a criminal trial and I am of the view that the impugned verdict is nothing but a sheer moral conviction. Though a young lady has lost her valuable life within a few months of her marriage while she was pregnant and that to while she was staying in her in-laws' house but that itself cannot be a factor to convict the appellant. Emotions have no role to play in a criminal trial in adjudicating the guilt or otherwise of the accused which is to be established by credible evidence. The crime committed may be cruel or ruthless but the evidence has to be evaluated dispassionately and objectively to see whether the accused is responsible for the said crime or he is innocent.
12. In view of the foregoing discussions, I hold that the prosecution has miserably failed to establish the charges against the appellant beyond all reasonable doubt.
In the result, the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant and the sentence passed thereunder is set aside. The appellant is acquitted of the charges under sections 498-A/302 of the Indian Penal Code.
The appellant who is in jail custody shall be released forthwith unless his detention is required in any other case.
Accordingly, the JCRLA is allowed.
Biswajit Mohanty, J.
I agree.
© Manupatra Information Solutions Pvt. Ltd.