Santosh Kumar Naik vs State Of Odisha
2022 Latest Caselaw 6677 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK


                         JCRLA NO.20 OF 2012

(From the judgment dated 19th February, 2005 passed by
learned Adhoc Addl. Sessions Judge (F.T.), Keonjhar, in S.T.
Case No.13/12 of 2004 (G.R. Case No.732/2003).


Santosh Kumar Naik                       ...        Appellant


                                 -versus-

State of Odisha                          ...        Respondent


Advocates appeared in the case through hybrid mode:


        For Appellant                     : Mr.C.R.Sahu, Advocate

                                -versus-

        For Respondent                   : Ms. Samapika Mishra
                                           Addl. Standing Counsel


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  CORAM:

                 JUSTICE D.DASH
                 JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

17.11.2022

Sashikanta Mishra,J. The judgment passed by learned Adhoc Addl.

Sessions Judge (F.T.), Keonjhar on 19th February, 2005

in S.T. Case No.13/12 of 2004 is under challenge in

the present appeal whereby the Appellant was

convicted under Section 302 of I.P.C. and sentenced to

imprisonment for life.

2. The prosecution case, briefly stated, is that on 9th

September, 2003 the Ward Member of village Namkani

in the district of Keonjhar lodged a written report

before the O.I.C of Telkoi P.S. stating that on that day

at about 7.00 A.M. one Phula Naik (hereinafter referred

to as the 'deceased') had been killed by her husband

Santosh Naik (accused-appellant) by means of an axe

and that being informed and requested by one Bira

Bhadra Naik of his village, he informed the matter to

Police. The written report was registered as Telkoi P.S.

Case No.74/2003 and investigation was taken up.

Upon completion of investigation, charge sheet was

submitted against the Appellant under Section 302 of

I.P.C.

The defence plea, apart from denial, was that the

deceased, who was suffering from brain malaria, fell

down and died while she had gone to fetch water.

3. The prosecution examined 13 witnesses in support

of its case and exhibited 15 documents apart from 1

material object being the weapon of offence. Defence,

on the other hand, did not adduce any evidence, either

oral or documentary.

4. Basing on the evidence of the autopsy surgeon

(P.W.8), the court below first held that the death of the

deceased was homicidal in nature. P.W.8 having

noticed two lacerated injuries and a bruise on vital

part of the body had opined that the said injuries were

sufficient in the ordinary course of nature to cause

death and that the same were also possible to be

caused by the weapon of offence (axe) (M.O.1), seized

during investigation.

5. As regards the author of the crime, the trial court

noted that there were no eye witnesses to the

occurrence and that the case was based entirely on

circumstantial evidence. In analyzing the evidence of

the prosecution witnesses, it was held that the

following circumstances were proved.

(i) The accused was seen by P.Ws.5 and 10 to be running away immediately after the occurrence towards jungle through an unusual route.

(ii) The accused gave recovery of the weapon of offence (axe), which he had concealed after committing the crime.

(iii) In his examination under Section 313 of Cr.P.C. the accused was found to have falsely stated that his wife was suffering from brain malaria due to which she fell down and died while she had gone to fetch water from a village well carrying an aluminum container.

The trial court also held that the accused

could not explain the presence of blood on the

weapon of offence, which was recovered at his

instance. On such findings, the accused was

convicted and sentenced as already stated

hereinbefore.

6. Heard Mr. C.R.Sahu, learned counsel for the

Appellant and Ms. Samapika Mishra, learned Addl.

Standing Counsel for the State.

7. Assailing the findings of the trial court Mr. Sahu

would argue that there being no eye witnesses, the

prosecution case can succeed only if a complete chain

of circumstances can be established by the

prosecution. He further argues that each of the

circumstances must independently point at the guilt of

the accused and must not admit of any other

hypothesis. The evidence in the case at hand,

according to Mr. Sahu, does not meet the above

requirements. Elaborating his argument Mr. Sahu

contends that only because the accused was seen to be

running away cannot be treated as incriminating in

nature in view of a plausible explanation being

available to the effect that the villagers usually prefer

to go by such route to attend call of nature. Secondly,

the so called recovery of the weapon of offence at the

instance of the accused cannot be said to have been

proved in view of the variance in the statement of the

witnesses to the so called recovery. Since there are no

other incriminating circumstances, the so called false

plea of the accused could not have been utilized to

hold him guilty.

8. Per contra, Ms. Samapika Mishra, learned Addl.

Standing Counsel, argues that when it is proved that

the death of the deceased was homicidal in nature and

the injuries found on her body were possible to be

caused by the axe which was recovered at the instance

of the accused, the same is a very important

circumstance pointing at the guilt of the accused. She

further argues that the accused had no reason to run

away hurriedly from the village after the occurrence

and such conduct can only show his culpability.

Ms. Mishra further argues that once the accused is

found to have given a false statement, the same further

strengthens the case against him.

9. Admittedly, there are no eye witnesses to the

occurrence. The trial court, as already stated, based its

finding of guilt of the accused on three circumstances.

Firstly, accordingly to P.Ws.5 and 10 the accused was

seen running away towards the jungle. In cross-

examination P.W.5 stated that the road on which the

accused was running was not a normal road and that

his movement was a little faster than normal. P.W.10

testified that he had seen the accused running away

towards the jungle and that the route through which

he was running away was not an ordinary path of walk

by pedestrians. P.W.10 also states to have called him

to know the reason as to why he was in a hurry but he

did not respond. In cross-examination he stated that

nobody is expected to be seen on the route on which

the accused was running away because it was the

extreme part of the cultivable lands.

Accepting the version of P.Ws.5 and 10 as above,

we are unable to appreciate as to how this can be an

incriminating circumstance against the accused

particularly having regard to the admission of P.W.5 in

cross-examination that the villagers visit the nearby

canal through the said route in their daily life to

attend call of nature. This runs contrary to the version

of P.W.10 that no one is expected to be seen on the

route. Therefore, even if it is accepted that the accused

was seen running away towards the jungle on that

route, it cannot only suggest that he was doing so as

he had committed the crime.

10. The Appellant is said to have given recovery of the

weapon of offence, which he had concealed, and his

statement was recorded under Section 27 of the Indian

Evidence Act. According to the I.O. (P.W.13), the axe

was seized in presence of Paramananda Naik (P.W.3)

and Charan Naik (P.W.7). P.W.3 stated that in course

of interrogation by Police, the accused disclosed that

after killing his wife he concealed the axe in a bush

and that he led them to the place of concealment near

the bush from where he gave recovery of the same. In

cross-examination he says that the axe was lying near

the house of the accused. P.W.7, on the other hand,

stated that the place of concealment was in the nearby

locality where the deceased was lying dead. Of course

he also stated that the accused brought out the axe

from under the bush and gave recovery of the same to

Police. In cross-examination he stated that the place of

concealment was a bush and the axe was not visible to

outside. He also stated that the road alongside the

bush is usually used by four to five families in the

village to fetch water from the nearby well.

Thus, the exact place of concealment and

recovery vis-à-vis the spot of occurrence remains

shrouded with doubts inasmuch as, from the conjoint

reading of the version of the I.O. and the two witnesses

there is hardly any clarity as to the exact place from where

the weapon of offence was recovered. To amplify, where

exactly the bush was located, how far it was from the

spot of occurrence and in which direction etc. are the

particulars that are found wanting. Interestingly, P.W.7

states that the place of concealment was in the nearby

locality where the deceased was lying dead in a house.

Therefore, simply on the version of the witnesses that

an axe was recovered from a bush at the instance of

the accused is not of that significance to be taken note

of in pointing the finger at the accused in relation to

the commission of offence i.e. the authorship of the

crime. According to P.W.2 the Police held inquest over

the dead body. According to P.W.4 he found the

deceased was lying near the road. According to P.W.6

(father of the deceased) he was informed by a village

boy about the deceased and thereafter he brought the

deceased to his house and she was dead by that time.

So if the version of P.W.6 is to be believed the inquest

ought to have been held in his house and therefore, the

spot of concealment must be near to his house. Such

is not the version of any of the witnesses. Therefore,

the evidence relating to so called recovery of the

weapon of offence also appears to be doubtful so as to

be accepted as an incriminating circumstance.

11. The other circumstance relied upon by the court

below is the false plea of the accused to the effect that

his wife was suffering from brain malaria and had died

because of fall while going to fetch water. Even

assuming for a moment that the accused had falsely

stated so, the same by itself would not be a

substantive piece of evidence to bring home the charge

against him. The false plea of the accused could have

been considered had the other circumstances been

proved beyond reasonable doubt in providing further

assurance, but in the absence of the same, it by itself

cannot have any relevance.

12. Law is well settled that in a case based on

circumstantial evidence, each of the circumstances

being proved beyond reasonable doubt in pointing the

finger of guilt at the accused; those when cumulatively

viewed must make the chain so complete that all the

hypothesis other than the guilt of the accused stand

ruled out.

13. In view of what has been discussed hereinbefore

it can hardly be said that the circumstances projected

by prosecution are adequate to establish the guilt of

the accused. The Court below has not considered the

above vital aspects surfacing in the evidence for which

the impugned order of conviction is rendered

vulnerable, thereby warranting interference. The Court

below appears to have laid much emphasis on the so

called conduct of the accused in staying at his aunt's

house at a different place when his wife was found

dead in the village. It is not understood as to how this

could be treated as an additional link relevant to the

prosecution case because if the Court accepts that the

accused was in his aunt's house then the allegation

that he killed his wife in the village again becomes

doubtful.

14. For the foregoing reasons therefore, we are of the

considered view that the impugned judgment cannot

be sustained in the eye of law. Resultantly, the appeal

is allowed. The impugned judgment of conviction and

order of sentence are hereby set aside. The Appellant

be set at liberty if not required to be detained in

connection with any other case.

15. L.C.R. be sent back to the Court below forthwith.

.................................. (Sashikanta Mishra) Judge D. Dash, J.

I agree

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

(D. Dash) Judge

Ashok Kumar Behera