Mahendra Bhoi vs State Of Odisha
2021 Latest Caselaw 12002 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRLA No.616 of 2017
(From the judgment dated 24th July, 2017 passed by Shri M.R.Barik,
Sessions Judge, Sundargarh in Sessions Trial No.176 of 2012.)


Mahendra Bhoi                           ......                 Appellant
                                       Versus
State of Odisha                         ......               Respondent


Advocate(s) appeared in this case :-
      For Appellant              :      Mr. B.B.Behera, Advocate
       For Respondent             :     Mr.J.Katikia, A.G.A

                      CORAM :
                      THE CHIEF JUSTICE
                      JUSTICE B.P. ROUTRAY

                            JUDGMENT

rd 23 November, 2021

B.P. Routray,J.

1. The Appellant has been sentenced to life imprisonment upon his

conviction by the learned trial court for the offence of murder.

2. The deceased is the second wife of the Appellant. They are

residents of village Kulda under Hemgir Police Station. Along with

them, the first wife of the Appellant namely Golapi, their children

Pinkey (P.W.3), Ashok (P.W.4), Suraj (P.W.5), the sister of the

Appellant namely Sashi (P.W.6), mother of the Appellant namely

Ahalya (P.W.8) and another daughter through Golapi were residing.

3. On 31st May, 2012 in the morning at about 8 A.M. the Appellant

called the deceased to go to forest for bringing firewood. The deceased

denied going with the Appellant and thus the quarrel ensued. The

Appellant out of anger dealt a blow on the backside head of the deceased

resulting bleeding injury. Then the Appellant left the house. Hearing the

hue and cry of members of the family, some co-villagers came to the

house of the Appellant and found the deceased lying in the house

unconsciously. They shifted the deceased to nearby hospital where the

doctor declared her as broad dead. One of the co-villagers namely, Gulu

Majhi lodged the F.I.R. under Ext.9, which was registered as Hemgir

P.S. Case No.66 dated 31st May, 2012 by the Inspector-in-Charge

(P.W.19). The said P.W.19 took up the investigation and arrested the

accused on 1st June, 2012 i.e., on the next day. Upon completion of

investigation, he submitted the charge-sheet on 14th August, 2012 for the

offence under Section 302 of the I.P.C.

4. In order to prove the charge, prosecution examined twenty

witnesses and relied upon sixteen documents marked as Exts. 1 to 16.

The prosecution also produced seven material objects to substantiate

their case.

5. The Appellant faced the trial by denying the charge. He also

claimed false implication.

6. Prosecution projected P.Ws.3, 4, 5 and 8 as the eyewitnesses of the

occurrence. They are the children of Appellant and deceased and mother

of the Appellant. But they did not support prosecution version as the

eyewitnesses and resiled from their earlier statement made before the

police. Though the public prosecutor cross-examined them but nothing

relevant towards their eye-witnessing of the assault could be elicited.

7. In absence of any direct evidence brought by the alleged

eyewitnesses, learned trial court by relying upon circumstantial

evidence, convicted the Appellant for causing the murder of his wife and

sentenced him to life imprisonment. As seen from the impugned

judgment, the circumstances relied upon by the trial court are that,

discovery of the axe (M.O.I) given by the Appellant while in police

custody, the bloodstains present on that M.O.I., opinion of the doctor

regarding possibility of causing injury by the said weapon and failure of

the Appellant to explain the reasons of death of the deceased.

8. Before examining such circumstances leading to conviction of the

Appellant, it is made clear that no dispute has been raised by either party

with regard to the nature of death of the deceased. The Appellant never

disputes the homicidal nature of death of the deceased and the injuries

sustained by her. At the same time it is seen from the evidence of the

doctor, P.W.16, who conducted postmortem examination over the dead

body of the deceased, that, he noticed four injuries, out of which two

injuries were bruises present on the buttock of the deceased. Out of other

two injures, one is laceration of size 1"x 1/2" x 1/4" over the right

parietal region and other one is an incised wound of size 2" x 1/2" x 1/2"

over the right occipital region of the head. In the opinion of P.W.16, the

death is due to shock and bleeding caused by the incised wound and

lacerated injury. It is thus otherwise proved on record that the deceased

died homicidal nature of death.

9. As per the statement of the I.O., P.W.19, the Appellant upon his

arrest on 1st June, 2012 while in police custody confessed his guilt in

presence of P.Ws.18 and 20 to have killed the deceased by M.O.I and

further disclosed that he concealed the said M.O.I in the pocket of a

stone heap near Chhaatenjora (a drain) near their village. Accordingly he

led the police team and the witnesses to the said place of concealment

and reaching there brought out M.O.1 from the heap of stones. Said

M.O.I, found with stains of blood, was seized by P.W.19 in presence of

P.Ws.18 and 20. The seizure list is Ext.8 and the disclosure statement of

the Appellant is Ext.13. Looking to the evidence of P.W.18 in this

regard, it is seen that he has stated that on 1st June, 2012 at about 4 to

4.30 P.M. when he was returning, police called him to village Kulda and

by that time the Appellant was sitting inside the police jeep. The

Appellant made the confession in the police jeep in his presence. But in

the cross-examination, this witness has said that at Kulda Bus Stop

police asked him and other witness (P.W.20) to follow their jeep and by

that time he did not know the reason why the police called them. When

they reached near the Jora, the Appellant led them to the spot and

brought out M.O.I. So as per the statement of this witness what he

admitted in the cross-examination that he was not a witness to the

confessional or disclosure statement of the Appellant before M.O.I was

discovered. Upon scrutiny of entire deposition of this P.W.18 suggests

that he is a witness to the seizure of M.O.I only. He cannot be treated as

a witness to the alleged disclosure given by the Appellant. His evidence

cannot be used for anything more than the seizure of M.O.I.

P.W.20, the other witness has not stated anything except admitting

his signature on Ext.8, the seizure list. Thus his evidence is no way seen

beneficial towards the alleged disclosure of the Appellant and

consequential seizure of M.O.I.

10. Admittedly, the axe under M.O.I is a common weapon available in

every house specifically of tribal people. P.W.19 has not taken the pain

to explain the circumstances of arrest of the Appellant. If the evidence of

P.W.8 is discarded with regard to the disclosure information given by

the Appellant, the only evidence remains is the statement of the

investigating officer himself. The question in such circumstance is,

whether it would be safe to rely the evidence of P.W.19 as the leading

circumstance for conviction of the Appellant?

11. The learned trial Judge has mentioned that stains of human blood

found on M.O.I and the opinion of the doctor under Ext.7 about

possibility of causing the injuries by said weapon are the connecting

circumstances against the Appellant. It is not disputed that during

chemical examination of M.O.I stains of human blood were noticed on

the axe. But that blood stains has not been confirmed by grouping to be

the blood of the deceased. The chemical examination report under

Ext.16 speaks that no opinion about grouping can be derived on the said

blood smear found on M.O.I. Therefore the conclusion of the trial court

that the blood stains present on M.O.I connect the Appellant with the

murder of the deceased is not found justified.

12. In addition to the presence of the bloodstains in the weapon, the

presence of blood stains on the wearing lungi and shirt of the deceased,

which were seized on production of the Appellant, and the failure on the

part of the Appellant to explain the reasons of such blood stains over his

wearing apparels has been considered by the trial court as an additional

circumstance under Section 106 of the Indian Evidence Act. In the

opinion of the learned trial Judge the failure of Appellant to explain the

reasons for presence of blood stains on his wearing apparels as well as

on the axe (M.O.I) discovered at his instance is a fact within his special

knowledge and therefore the failure on his part to explain those

circumstances are relevant under Section 106 of the Indian Evidence

Act. The underlying principles to be remembered here that, before

drawing an adverse inference against the accused for such facts within

his special knowledge, the prosecution must establish the guilt of the

accused and such burden on the prosecution under Section 101 of the

Indian Evidence Act is no way reduced. Section 106 is an exception to

Section 101 and cannot be attracted against the accused unless that

initial burden of the prosecution is proved.

In the present case, it is not proved by prosecution that the human

blood found on the wearing apparels of the accused is the blood of the

deceased. As mentioned earlier, the bloodstains noticed on the axe as

well as on the wearing apparels have not been established on record to

be of the deceased only. The chemical examination report under Ext.16

speaks clearly on this aspect. When the blood patches or smears have

not been proved to be that of the deceased, then drawing an adverse

presumption against the Appellant is not permissible.

13. The conviction of the Appellant by the trial court is based on such

weak pieces of evidence and the reasons given by the learned trial court

to connect the Appellant in the alleged crime through the weapon under

M.O.I and the wearing apparels under M.O.II and M.O.III are not found

sufficient to establish the guilt.

14. As discussed earlier, the disclosure information given by the

appellant about the weapon of offence through the Investigating Officer

is very a weak piece of evidence to connect the Appellant in the alleged

murder.

15. In view of such poor and shaky nature of evidence, the guilt of the

accused cannot be founded. We are thus of the opinion that the

prosecution has failed to establish the charge beyond all reasonable

doubts. The Appellant is acquitted accordingly. It is directed to set him

at liberty forthwith, if his detention is not required in any other case.

16. The seized material objects be destroyed after four months from

today.

17. The appeal is allowed.

(B.P.Routray) Judge

(Dr. S. Muralidhar) Chief Justice

C.R. Biswal, Secy.