Santosh @ Khudi Minz vs State Of Odisha
2022 Latest Caselaw 2317 Ori

      THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No. 566 of 2016

In the matter of application under Section 374 of the Code of Criminal
Procedure, 1973.
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  1. Santosh @ Khudi Minz,
     S/o. Etwa Minz,
     Village- Kundupada,
     P.S.- Rajgangpur,
     District- Sundargarh.

  2. Bijaya @ Bije Minz,
     S/o. Etwa Minz,
     Village- Kundupada,
     P.S.- Rajgangpur,
     District- Sundargarh.        .......               Appellants

                                 -Versus-

   State of Odisha                .......               Respondent


           For the Appellants      : Mr. Jugal Kishore Panda,
                                     Advocate


           For the Respondent      : Mr. Sk. Zafrulla,
                                     Addl. Standing Counsel


           CORAM :

           HONOURABLE MR. JUSTICE C.R. DASH
           HONOURABLE MR. JUSTICE M.S. SAHOO
                                           2


                                    JUDGMENT

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Date of Hearing: 28.03.2022: Date of Judgment: 21.04.2022

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C.R. Dash, J. This appeal is directed against the Judgment of conviction

dated 17.08.2016 and order of sentence dated 19.08.2016 passed by learned

Sessions Judge, Sundargarh in S.T. No.115 of 2014. Both the appellants were

tried under Section-302 read with Section-34 of the Indian Penal Code ("IPC"

for short) and each of them were sentenced to suffer imprisonment for life and

to pay a fine of Rs.10,000/- (Rupees ten thousand) in default, to suffer further

R.I. for two years.

2. The occurrence happened on 05.05.2014. P.W.6, who happens to

be the cousin brother of the deceased, is the informant. Stated succinctly, the

prosecution case runs as follows:-

The deceased-Kalkati Hans got married to appellant No.1-Santosh

@ Khudi Minz in the year 2006. Few days after the marriage, aforesaid

appellant No.1 wanted to kill his wife (deceased). Therefore, the deceased

came to the house of her father and returned to her matrimonial house after

settlement of the issue.

On 05.05.2014, around 2 P.M., the informant (P.W.6) and family

members of the deceased came to know that, the deceased has been murdered

by the appellants. It is pertinent to mention here that, the parents of the

deceased live in "Majhipada" and the appellants live in Uparapada of the same

village Kundupada. Going to the house of the appellants, family members of

the deceased including the informant found that the wrist of the deceased were

cut and her dead body was lying inside the house of the appellants. They also

found that a plastic rope was lying near the dead body. They suspected foul

play of the appellants and their family members in causing death of the

deceased and lodged the F.I.R.

The I.O., S.I. of Police attached to Rajgangpur Police Station in

absence of the I.I.C., registered the F.I.R. for offences U/Ss.498-A/302/34 IPC

and took up investigation. After investigation, he submitted Charge Sheet

against the appellants U/S.302/34 IPC.

3. The prosecution has examined twenty witnesses to prove the

charge against the appellants during trial of the case and number of documents

vide Ext.1 to 13 have been marked on behalf of the prosecution. P.W.6 is the

informant, P.W.7 is the father of the deceased. P.W.8 is mother of the

deceased. P.W.3, being a witness to inquest, is asserted to be the adjoining

neighbor to the appellants and father of the deceased. Besides P.W.3, P.Ws.4 &

9 are post-occurrence witnesses and adjoining neighbor of the appellants.

P.Ws.1, 2 & 3 are witnesses to inquest over the dead body of the deceased.

P.W.5 is an independent post-occurrence witness. P.W.9 is the local councilor

and an adjoining neighbor of the appellants. P.Ws. 10, 11, 12, 14 & 17 are

witnesses to different incriminating seizure. P.Ws.13 & 15 are witnesses to

confessional statement of appellant No.1-Santosh @ Khudi Minz before the

I.O., which was recorded U/S.27 of the Evidence Act and consequent recovery

of the weapons of offence, i.e., one axe with a wooden handle and one wooden

stick, which are asserted to have been blood stained. P.W.16 is the then

Scientific Officer of D.F.S.L., Sundargarh, who on 05.05.2014, visited the

crime scene and collected incriminating materials. P.W.18 is the Investigating

Officer, P.W.19 is the Medical Officer, who conducted autopsy over the dead

body of the deceased, P.W.20 is the employer of appellant No.1-Santosh @

Khudi Minz, who has been examined to testify that, on the date of occurrence,

appellant No.1 was on his duty as a driver.

4. The defence plea is one of complete denial and no evidence has

been adduced on behalf of the defence.

5. Learned trial court, in absence of any ocular testimony, has

returned its finding of guilt against the appellants on the basis of circumstantial

evidence. The circumstances relied on by learned trial court are as follows:-

(I) The dead body was found in the house of the appellants and

the death of the deceased was caused in privacy of the

appellants' house.

(II) The weapons of offence, i.e., one axe and a wooden stick

were seized on the basis of confessional statement of

appellant No.1 before the I.O. recorded U/S. 27 of the

Evidence Act.

(III) Matrimonial discord between appellant No.1 and the

deceased.

(IV) Conduct of appellant No.1 which assumes relevance U/S. 8

of the Evidence Act in pointing out to the weapons of

offence, i.e., one axe and one wooden stick.

(V) The appellants have failed to discharge their burden U/S. 106

of the Evidence Act.

Circumstance No.(I)

6. So far as the first circumstance is concerned, Mr. Jugal Kishore

Panda, learned counsel for the appellants does not dispute the opinion given by

the Medical Officer-P.W.19, so far as cause and nature of death of the deceased

is concerned. But it is an admitted fact that, the death of the deceased was

caused in the house of the appellants.

We propose to discuss this circumstance so far as death of the

deceased in privacy of the house of the appellants is concerned and non-

explanation of appellants as to how and under what circumstance, such death of

the deceased was caused later on while discussing the last circumstance, i.e.,

circumstance No.(V).

Circumstance No.(II)

7. So far as the evidence of discovery of weapons of offence, i.e., one

axe and one wooden stick is concerned (circumstance No.II), relevant

witnesses are P.Ws.13, 15 and the I.O.-P.W.18.

P.Ws.13 & 15 have not supported the prosecution case and they

have been cross-examined U/S. 154 of the Evidence Act. They have also

denied the fact that, appellant No.1-Santosh @ Khudi Minz led the I.O. and

independent witness to the place of concealment and gave recovery of weapons

of offence, i.e., one axe and one wooden stick.

Learned court below has relied heavily on the evidence of the I.O.-

P.W.18. The weapons of offence seized in this case, have neither been marked

as M.Os. nor they have been sent for chemical examination to come to a

definite conclusion that, those weapons of offence were used in commission of

crime or in other words, they are connected with the crime.

The Scientific Officer of the D.F.S.L., who has been examined as

P.W.16 in paragraph-2 of his evidence has testified that in the second room of

the spot house, he found three tin trunks kept at one corner of the house. Those

were kept one over another vertically and on the top of the smallest trunk, he

found a kitchen knife with wooden handle. In paragraph-3 of this evidence, he

has testified that, he handed over the kitchen knife to the I.O. for sending it for

examination by the Medical Officer. From the evidence of Medical Officer

(P.W.19), it is found that, aforesaid kitchen knife was not sent by the I.O. to the

Medical Officer for his opinion. In paragraph-17 of his evidence, the Medical

Officer (P.W.19) has testified that the weapons of offence, i.e., one axe and a

lathi were received by him in open condition and he has not mentioned about

presence of blood on any of the two weapons.

Taking into consideration the aforesaid facts and the evidence of

P.Ws.13 & 15, who have not supported the prosecution case being independent

witnesses, we do not feel persuaded to accept the evidence of I.O. alone on this

score in as much as we have seen in numerous cases that, Section-27 of the

Evidence Act has been frequently misused by the Police and Court should be

vigilant about the circumvention of its provisions.

Circumstance No.(III)

8. So far as circumstance No.III, i.e., marital discord between

appellant No.1 and the deceased is concerned, learned trial court has leaned

heavily on the evidence of P.W.3 and on the touchstone of evidence of P.W.3,

has disbelieved the evidence of other similar witnesses.

On this aspect, P.W.3, in his cross-examination has testified thus:-

".......... The paternal home of the deceased as well as the matrimonial home of the deceased are just my neighbor as because, the respective houses situate about two to five meters apart away from my house on both the sides. My house situates at Majhipada and so also the houses of those two families........."

In examination-in-chief paragraph-1, P.W.3 has stated thus:-

".........Before her murder, there was frequent disputes, dissentions and quarrelling between her husband, namely accused Santosh Minz and the deceased........"

P.W.1, who is a member of Maa Mangala Self Help Group

wherein, P.W.8, mother of the deceased is also a member, has testified in

paragraph-4 of his cross-examination that, there was no formal marriage

between appellant No.1 and the deceased; both had love affair, but they were

living as man and wife giving birth to two children.

In paragraph-3 of her cross-examination, P.W.1, who is an

independent witness, has stated thus:-

".........The maternal home of the deceased situated at "Majhi Pada" of my house, where I have also got my house, whereas at "Upara Pada" of the same village, the house of the inlaws and husband of the deceased situates. The distance between the two "padas" would be about 15 minutes walk.........."

9. If we compare the evidence of P.W.1 with P.W.3, it would be seen

that, P.W.3's assertion to the effect that, he is a neighbor of the appellants,

cannot be believed in as much as he ipse dixit has testified that, his house is

situated at Majhi Pada but P.W.1 has testified that the house of the appellants is

situated at Upara Pada of the same village and it takes 15 minutes walk to reach

Upara Pada from Majhi Pada.

10. P.W.4 in his cross-examination paragraph-2 has testified thus:-

"The house of the accused Santosh situates at Upara Pada hamlet of my village whereas the maternal home of the deceased situates at Majhi Pada hamlet of my village. My house situates near the house of the accused persons. The house of Kartika Singh (P.W.3) situates at Majhi Pada hamlet of our village......."

He has further testified that,

".......Accused Santosh was having love with the deceased and ultimately married her. Out of their wedlock, two children have been born. I had attended the EKUSIA CEREMONY of both the children of accused Santosh along with the paternal family members of the deceased. To my knowledge the deceased was having good and congenial term not only with her husband but also with other members of her inlaws. I had never seen any quarrelling or dissension between the deceased and accused Santosh........."

P.W.6, who is none other than the informant, has testified thus in

paragraph-4 of his cross-examination:-

".......... It is a fact (admits) that I had never heard of happening of any quarrelling and dispute between the couple. At no point of time either myself or the deceased herself or the father of the deceased had ever lodged any manner of complaint against accused Khudi and/or his family members at the P.S........."

P.W.7, who is none other than the father of the deceased in his

evidence, has not whispered a word about the dispute, dissension or quarrelling

between appellant No.1 Santosh @ Khudi Minz and the deceased after

marriage or before the fateful incident.

P.W.8, who is the mother of the deceased, in paragraph-2 of her

cross-examination, has testified thus:-

"At the beginning the couple were living happily and cordially. Later I heard that there was some quarrelling between the couple in frequent intervals."

P.W.9 is the adjoining neighbor of the appellants. He has testified

that to his knowledge, the accused Santosh @ Khudi and Kalkati (deceased)

were living peacefully and cordially and on the date of death of the deceased,

he has heard no quarrelling between the couple.

11. If we analyze the aforesaid evidence on the basis of evidence of

P.Ws.1 & 4, P.W.3 has to be disbelieved, as his house is there at Majhi Pada of

the village and his assertion to the effect that, he is the adjoining neighbor of

appellants, cannot be believed.

12. So far as mother of the deceased P.W.8 is concerned, she has not

seen any dispute, dissension or quarrelling between appellant No.1-Santosh @

Khudi Minz and her daughter Kalkati (deceased). However, she is testified to

have heard about such happening frequently. Her evidence, being omnibus in

nature and being hearsay, cannot be believed, in view of positive evidence of

P.Ws.4, 6 & 9. Therefore, this circumstance is also held to be disproved.

Circumstance No.(IV)

13. So far as Circumstance No.(IV), i.e., conduct of the accused in

giving recovery of the weapons of offence is concerned, that has no value in as

much as we have already disbelieved the evidence adduced U/S. 27 of the

Evidence Act so far as the confessional statement of appellant No.1-Santosh @

Khudi Minz is concerned and consequent recovery of weapons of offence, i.e.,

one axe and one wooden stick is concerned.

Circumstance No.(V)

14. So far as circumstance No.(V), i.e., failure of the appellants in

explaining as to how the deceased died and under what circumstance, she died

and shifting the burden to them U/S. 106 of the Evidence Act is concerned, we

feel persuaded to rely on a recent decision of Hon'ble the Supreme Court in the

case of Nagendra Sah vs. State of Bihar (2021) 10 SCC 725. In paragraphs-

18 to 21 of the aforesaid Judgment, Hon'ble the Supreme Court has held thus:-

"18. Now we come to the argument of the prosecution based on Section 106 of the Evidence Act. Section 106 reads thus:-

"106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

19. Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist.

Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101. On the issue of applicability of Section 106 of the Evidence Act, there is

a classic decision of this Court in the case of Shambu Nath Mehra v. The State of Ajmer (1956) SCR 199 which has stood the test of time. The relevant part of the said decision reads thus:-

"Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".

Illustration (a) says-

"A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime".

This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the

whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.

Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket.

On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the

accused, the facts cannot be said to be "especially" within the knowledge of the accused.

This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."

20. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

21. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden Under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

From the aforesaid decision, it is clear as to when non-explanation

of the appellants regarding their conduct assumes relevance.

15. Learned trial court has relied on a decision of this Court in the

case of Ratan Jani vs. State of Odisha (2016) 64 OCR 725 to form an

opinion that, in view of that decision, the burden should be shifted to the

appellants U/S. 106 of the Evidence Act to explain their conduct.

Perusal of the aforesaid Judgment in the case of Ratan Jani shows

that in the aforesaid case, all the incriminating circumstances against the

appellants were found to have been proved and they were held to be clinching

and trustworthy. It was further found by this Court that, all the circumstances

proved forms a complete chain, which unmistakably and inevitably lead to an

irresistible conclusion regarding the guilt of the appellant and rules out any

possibility of his innocence. The aforesaid decision in the case of Ratan Jani is

in line with the decision of Hon'ble the Supreme Court we have referred to

(supra). Learned trial court under misconception has relied on the case of Ratan

Jani to shift the burden to the appellants U/S. 106 of the Evidence Act.

16. We have already held and concluded in this case that the

circumstances established by the prosecution have not been proved except the

fact that the deceased died a homicidal death in the privacy of her matrimonial

home. It is further found that, learned trial court has convicted appellant No.2-

Bijaya @ Bije Minz without an iota of evidence against him.

17. Therefore, the question that survives for consideration is, whether

only on the basis of opinion of the Medical Officer (P.W.19), who conducted

autopsy over the dead body of the deceased, regarding the cause of death, can

be held to be sufficient to hold the appellants guilty. We are of the merited view

that, only on the basis of post-mortem report and the opinion of the doctor,

when other circumstances are held to be disproved, the appellants cannot be

convicted for the offence punishable under Sections 302/34 IPC (See Balaji

Gunthu Dhule vs. State of Maharashtra (2012) 11 SCC 685) and AIR 2013

SC 264).

18. In the result, therefore, conviction of the appellants under Section

302/34 IPC by the learned Sessions Judge, Sundargarh in S.T. No.115 of 2014

and consequent sentence recorded thereunder are set aside. The appeal is

allowed. The appellant No.1-Santosh @ Khudi Minz, who is in custody, be

released forthwith, if his detention is not required in any other case. The

appellant No.2- Bijaya @ Bije Minz being on bail, he shall be discharged of the

bail bond.

.................................

                                                   (C.R. Dash, J.)


M.S. Sahoo, J.       I agree.
                                                 .................................
                                                  (M.S. Sahoo, J.)
    Orissa High Court, Cuttack.
    The 21st April, 2022