Orissa High Court
Chalaka Munda vs State Of Orissa on 7 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK.
JAIL CRIMINAL APPEAL No.80 of 2015
From the judgment of conviction and order of sentence dated 15.10.2015 passed by
the learned Sessions Judge, Keonjhar in Sessions Trial Case No.228 of 2013.
Chalaka Munda ...... Appellant
-Versus-
State of Orissa ...... Respondent
For Appellant : Mr. C. R. Sahu, Advocate
For Respondent : Mr. S.S. Mohapatra,
Addl. Standing Counsel
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CORAM :
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of Hearing: 20.07.2022 Date of Judgment: 07.09.2022
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S. Talapatra, J. The Appellant was charged under Section 302 of the I.P.C.
for committing cruelty and murder of his wife, namely, Gagei Munda on
09.03.2012 by the Sessions Judge, Keonjhar on 12.05.2015 and on
conclusion of the trial, he has been convicted under Section 302 of the
I.P.C.
2. It has been observed by the Sessions Judge, Keonjhar as
follows:
"16. Culling the materials available on record on
the basis of the aforesaid cardinal principles, it is well
established that the deceased has met her unnatural and
homicidal death in the house of the accused and that she
has faced her death due to number of injuries sustained
on her body as apparent from P.M. report under Ext.5
and after her death, she had number of charring injuries
on different parts of her body and her saree is found to
have contained human blood as apparent from the
chemical examination report under Ext.8 Moreover, the
accused being the husband was the caretaker of the
deceased but he was found absent from home. He has
also remained absconded for which charge-sheet is
submitted showing him as absconder. No evidence is
coming forward from the defence regarding any other
circumstances showing the cause of death of the
deceased. The plea of fall in the stone quary as raised by
the defence has not been substantiated. The cumulative
effects of all such circumstances lead to an irresistible
conclusion that there is no missing link to exonerate the
accused from such charge of committing murder of the
deceased, his wife. The nature of injuries sustained by
the deceased as apparent from the P.M. report proves
the criminal intention of the accused to commit nothing
but murder of the deceased which comes under the 1st
clause of Sec.300, I.P.C."
[Emphasis added]
3. On a keen reading of the said judgment, it further appears
that the Appellant admitted the death of the deceased in his house, but he
has given no explanation how the injuries were suffered by his wife. No
attempt is made to explain or clarify the incriminating circumstances by
the accused, his case is a case of total denial. Thus, the accused not only
lost the opportunity to exculpate him, but also stood self-condemned.
4. Pursuant to the said judgment of conviction, the Appellant
has been sentenced to suffer imprisonment for life and to pay fine of
Rs.10,000/- (Rupees ten thousand), in default whereof, to undergo
further rigorous imprisonment for one year, for committing the offence
of murder of his wife.
5. In order to substantiate the charge, the prosecution adduced
8 witnesses, including the informant (Raisingh Munda). A series of
documents Ext.1 to Ext.9 including the P.M. report (Ext.3) have been
admitted in the evidence by the prosecution.
6. Mr. C.R. Sahu, learned counsel appearing for the Appellant
has contended that, there is no legal evidence to involve the Appellant
with the offence for which he has been convicted. The judgment has
been passed on surmise and mere suspicion. No circumstantial evidence
has been proved to link the Appellant with the crime. According to Mr.
Sahu, learned counsel, admittedly there is no eye witness of the
occurrence. Even, the informant (P.W.1) did not claim that he had seen
any part of the occurrence. The Appellant, according to the information
lodged by P.W.1, had married the deceased. The said marriage was
culmination of their love affairs. It had been routine affairs that the
Appellant used to, under influence of liquor, demand money from the
deceased for consuming liquor. Many a times, the deceased was
assaulted by the Appellant. Being afraid, the deceased took shelter in her
paternal house. It may be noted here that, P.W.1 is the father of the
deceased. It has been revealed in the First Information Report that on
09.03.2012, the Appellant asked the deceased for money to consume
liquor, but as the deceased did not comply for want of money, the
Appellant got furious and assaulted on the backside of her head by a
Silapua (curry stone-bar), inflicted burn injuries and committed her
murder.
7. On receipt of such information, he went to the house of the
accused and found the deceased lying dead with injuries on different
parts of her body including backside of the head. The informant was
convinced that the Appellant had committed the murder of his daughter
and accordingly, he reported the occurrence to the Police, thus
Ramachandrapur P.S. Case No.62 of 2012 was registered and taken up
for investigation. The police report under Section 173(2) of the Cr.P.C.
was filed on completion of the investigation by charge-sheeting the
Appellant. On commitment the charge aforementioned, was framed.
8. After the prosecution evidence was over, the statement of
the Appellant was recorded under Section 313(1)(b) of the Cr.P.C. The
Appellant denied the incriminating statements as surfaced in the trial.
9. As the defence did not adduce any evidence, on
appreciation of the prosecution evidence, the finding of conviction was
returned.
10. To appreciate whether there is evidence to convict the
Appellant, a meaningful survey of the evidence is essentially required.
As stated earlier, the informant (P.W.1) is not the eye witnesses. Hence,
the prosecution has to rely on the circumstantial evidence. P.W.1
introduced the incriminating circumstances by stating that on
09.03.2012, the deceased was assaulted by the Appellant, as she failed to
give money to the Appellant for consuming liquor. The Appellant used
Silapua (curry stone-bar) to hit the backside of the head of the deceased.
P.W.2 namely, Kabi Munda is a post occurrence witness. He
accompanied P.W.1, when he had taken the journey to reach his
daughter's house on having the information that she had been subjected
to physical atrocity. He stood witnesses to the inquest and signed the
inquest report (Ext.2). He has stated that P.W.1 was not in visiting terms
to the house of the Appellant, but on getting the information from the
villagers about the said murderous assault, he went to the house of the
Appellant. P.W.3 Smt. Kali Munda turned hostile and denied her
previous statement, made to the police. P.W.4, Ladar Munda has
testified in the trial that the Appellant and the deceased were living
peacefully. But, he was not declared hostile. P.W.5, Dr. Pramod Kumar
Behera has carried out the post-mortem examination over the dead body
of the deceased. Based on the post-mortem examination, P.W.5 testified
that the deceased had the following injuries:
(i) There is bleeding from mouth.
(ii) Faecal material present in anus.
(iii) contusion of size 5 x 3 cm present infront of the neck
(iv) Contusion of size 7 x 2 cm present on the right side
of the forehead.
(v) Contusion of size 5 x 4 cm present on left side of face
below left eyelid.
(vi) Laceration of size 5 x 4 x 1 cm on occipital region.
(vii) Abrasion of size 1 x 1 cm present on left breast.
(viii) Multiple charings of injuries of varied sizes 1 x 7 cm
present in both buttocks, both chests, right elbow, both
shoulders, left thigh, left knee and left side of scapula.
2. On dissection, he found as follows:
(i) Trachea and larings are ruptured.
(ii) Hyoid bone was fractured.
11. According to P.W.5 the contusion, abrasion, rupture and
fracture, as found on the person of the deceased were ante mortem in
nature. The cause of death of the deceased was due to asphyxia, from
rapture of trachea and fracture of hyoid bone. P.W.6, Maina Munda did
state nothing which is material for proving or disproving the charge.
P.W.7, namely, Amulya Kumar Routray had investigated the case.
P.W.7 carried out the inquest, did visit the place of occurrence and
prepared the site map (Ext.5). P.W.7 has also stated in the trial how he
had seized the material objects, including the wearing apparels of the
deceased under the seizure list (Ext.7). P.W.7 had also examined
witnesses, but he did not complete the entire investigation. In the cross-
examination, P.W.7 has admitted that, Raisingh Munda (P.W.1) has not
stated to him that about two years back the Appellant visited his home
under influence of liquor or that the Appellant committed murder of his
daughter. P.W.8, Surya Narayan Das is another Investigating Officer
who had completed the investigation and filed the charge-sheet against
the Appellant. He has not testified for anything which may be termed as
material for purpose of convicting the Appellant.
12. According to Mr. Sahu, learned counsel for the Appellant,
the foundation of the conviction is that, the Appellant has failed to
explain the episode how the death occurred to his wife and how his wife
suffered so many fatal injuries over her body. The trial Judge has
committed serious error in understanding the statutory requirement of
discharging burden of proof.
13. Mr. S.S. Mohapatra, learned Additional Standing Counsel
has in order to repel stated that the prosecution has proved the case by
putting the episodes of circumstances in a complete chain pointing
exclusively to the guilt of the Appellant. He has further stated that, the
prosecution has proved that the Appellant was in a habit to extracting
money from his wife (the deceased) for consuming liquor and every day
the deceased could not provide money and she used to be tortured by the
Appellant. On the fateful day, for refusal of making the money, the
Appellant by the curry stone-bar brutally hit the deceased. On the
following day, P.W.1 filed the information. In the inquest report, the
presence of the injuries had been recorded. The post-mortem report has
confirmed the observation recorded in the inquest report as regards the
ante mortem injuries. P.W.5 has confirmed the injuries as found during
the inquest procedure. According to Mr. Mohapatra, learned Additional
Standing Counsel, all those episodes formed a chain by demolishing the
hypothesis of innocence in favour of the Appellant. Therefore, the
judgment of conviction is not warranted to be interfered with.
14. Having appreciated the evidence and the submission of the
learned counsel for the parties, we would like to make an initial
observation that the death of Gagei Munda succumbing to the injuries, as
noted above has been well established. Now the solitary question that
surfaces is that, whether there is legal proof that the Appellant has
caused the death of his wife on 09.03.2012 in his house at Patilo, Nakha
Sahi. True it is that, the dead body was found by P.W.1 and P.W.2 in the
yard of the Appellant's house. But P.W.1 has categorically stated that he
did not see the occurrence. But he saw one Silapua and Funkanala (iron
blow-pipe) lying near the dead body. Neither P.W.1 nor any other
witnesses have stated that they had found the Appellant in drunken
condition. P.W.1 has only stated that some local sahi members of the
accused gave him information regarding the death of his daughter. He
has merely stated that he cannot give the name of any one of them, from
whom he came to know about the episode. But at that time he did not
find the Appellant. But he found his grand-father, but he did not enquire
anything from any person including the grand-father whether the
Appellant was at their house on the previous night when the said
occurrence took place. He has further stated that, he noticed marks of
burn injuries on the portion of her daughter. P.W.2 did not tell anything
about the occurrence, as he nearly accompanied P.W.1. P.W.3, a villager
turned hostile and did not reveal anything to involve the Appellant with
the commission of offence. Similarly, P.W.4 as noted before did not
reveal anything in the trial to support the prosecution case. True it is that
P.W.5 has given the catalogue of injuries he found on the dead body of
the deceased. He has opined that the cause of death was asphyxia due to
rapture of trachea and fracture of hyoid bone. P.W.6 did not reveal
anything. P.Ws.7 and 8 are the investigating officers. One of them
(P.W.8) filed the charge-sheet on the basis of the purported
circumstantial evidence.
15. The prosecution has miserably failed to prove the charge
against the Appellant or to lay the foundational evidence, to say least of
episodes of circumstances. No material was brought on record that the
Appellant had been with the deceased at the night of occurrence in that
home and the place of occurrence was not accessible to others. Even the
narrative of drinking habit and assaulting the deceased on refusal of
giving money to the Appellant for consuming liquor has not been
supported by any evidence. Even P.W.1 has resiled from his statement.
He has testified that he did not state to the police that the Appellant
visited his place in the drunken condition. There is no other evidence on
drunkenness, assault or presence of the Appellant on the night of
occurrence. Therefore, we are constrained to observe that, even the
circumstances do not form a basis where the onus shifted to the
Appellant to explain how the said occurrence took place. The law is well
settled that, unless it is successfully proved by the prosecution that the
accused is seized of the knowledge how an event or occurrence had
taken place, the accused cannot be asked to explain or the accused
cannot be put under any obligation to explain the same in order to
exculpate him in terms of the provision of Section 106 of the Indian
Evidence Act. On cumulative assessment of the evidence, we are of the
view that the evidence laid by the prosecution has gone heyware. Even
there may be strong suspicion, but however strong the suspicion may be,
that cannot substitute the requirement of the legal evidence. As such, it
cannot be held that the Appellant was under obligation to explain how
the death of his wife had taken place. Hence, the finding of the trial
judge in this respect is unsustainable. As consequence, the Appellant is
entitled to benefit of doubt.
16. In Shambu Nath Mehra vs. The State of Ajmer reported in
1956 SC 404, it has been enunciated inter alia as under:
""When any fact is especially within the
knowledge of any person, the burden of proving that fact
is on him". The stress, in our opinion, is on the word
"especially". 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 preeminently 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 murder because who could know better
than he whether he did or did not. It is evident 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 be did not commit the
crime for which he is tried. These cases are Attygalle v.
Emperor(1) and Seneviratne v. R. (2).
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 be purchased a ticket. On the other band, 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."
[Emphasis added]
17. Having observed thus, we are persuaded to interfere with
the judgment and order of conviction of sentence and consequently,
those are set aside.
18. In the result, the appeal stands allowed. The Appellant be
set at liberty forthwith, if not warranted in any other case.
19. Sent down the LCRs.
.................................
( S. Talapatra, J.)
M.S. Sahoo, J. I agree.
.................................
(M.S. Sahoo, J.)
Orissa High Court, Cuttack.
The 7th day of September, 2022.
L. Murmu, Senior Stenographer.
