Orissa High Court
Ms. Chandana Tripathy vs State Of Odisha on 14 November, 2024
Author: Chittaranjan Dash
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 26 of 2014
(Arising out of the Judgment and Order of conviction on dated 21st
of November, 2013 passed by Shri Baisampayan Kar, Sessions
Judge, Jajpur in C.T. (Sessions) No. 198 of 2012, for the offence
under section 302 of the Indian Penal Code, 1860)
.... Appellant
Bansidhar Sahu
Ms. Chandana Tripathy,
Advocate
-versus-
State of Odisha .... Respondent
Mr. Jateswar Nayak,
Addl. Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 14.11.2024
Chittaranjan Dash, J.
1. The Appellant, namely, Bansidhar Sahu, in the present
JCRLA, has challenged the Judgment and Order dated 21.11.2013
of the learned Sessions Judge, Jajpur, wherein he having found
guilty in the offence under section 302 Indian Penal Code
(hereinafter, in short, called "IPC") for commission of murder of his
wife, namely, Manika Sahu, sentenced to undergo imprisonment for
life and to pay a fine of ₹20,000/- (Rupees twenty thousand), and in
default, to undergo rigorous imprisonment for 4 (four) months. It
was further directed that out of the fine amount, when realised, a
sum of ₹15,000/- (Rupees fifteen thousand) was to be paid to the
father of the deceased.
2. The prosecution case, in brief, is that the deceased Manika,
a resident of village Rasulpur village in District Jajpur had married
the Appellant about ten years before the occurrence. As alleged, at
the time of her marriage, in compliance with the demand of the
bridegroom side dowry was given to the Appellant's family which
included cash of ₹50,000/-, gold jewellery, a color television, a
refrigerator, a Godrej almirah, a fan, furniture, and various
household items. Regardless of these, the Appellant frequently
subjected the deceased to assault and cruelty, both physical and
mental, demanding further dowry. On several occasions, the father
of the deceased, the Informant, intervened in resolving the issues
amicably with a hope of ensuring his daughter's well-being.
However, on 24.07.2012, the father of the deceased received the
news that the Appellant to have brutally assaulted the deceased by
means of a crowbar (locally known as Hansakala), inflicting severe
injuries on her abdomen and head and on being taken to the hospital
she was declared dead by the doctor. Consequently, the father of the
deceased lodged F.I.R. with Jajpur Sadar Police Station upon which
the Police registered Sadar P.S. Case No. 80/2012, and took up
investigation.
3. In the course of investigation, the I.O. (P.W.16) the ASI of
Police at Jajpur Sadar, examined the Informant and other witnesses,
visited the spot, and prepared the spot map vide Ext.6. During the
spot visit, the I.O seized incriminating articles, including the alleged
weapon of offence i.e. a crowbar, and prepared the seizure lists,
vide Exts. 7, 8, 9, 10, 11, and 12. The Appellant-Accused was
arrested on the same day. On the following day, dated 25.07.2012,
the I.O. conducted an inquest over the dead body of deceased at the
District Headquarters Hospital, Jajpur and subsequently sent the
body for post-mortem examination. The incriminating articles
seized were sent to the State Forensic Science Laboratory (SFSL)
for chemical examination. The chemical examination report is
marked as Ext.15. Upon completion of the investigation, the
chargesheet was submitted on 06.11.2012 against the Appellant to
face the trial in the offence under section 302 IPC.
4. The case of the defence is one of complete denial and false
accusations. However, during the course of trial, the Appellant
admitted in his examination under section 313 Cr.P.C. to have
committed the murder of his wife by means of the weapon of
offence, locally called as Hansakala.
5. To bring home the charge, the prosecution examined 16
witnesses in all. P.W.1, Nakula Sahu, is the uncle of the deceased;
P.W.2, Padan Sahu, is the informant being the father of the
Appellant; P.W.3, Bhikari Sahu is the Informant being the father of
the deceased; P.W.4, Govinda Dutta is the scribe of the FIR; P.Ws.
5, 7, 9, and 11 are the neighbours; P.W.6, Dr. Nimai Charan Nayak
is the medical officer who examined the Appellant; P.W.8, Hiranya
Sahu, is the sister of the deceased; P.W.10, Kartik Sahu, is the
inquest witness; P.W.12, Amuli Sahu, is the mother of the
Appellant, P.W.13, Dr. Binayak Prasad Prusty, is the medical
officer who conducted the post-mortem examination, P.Ws.14 and
15 being Constable and ASI respectively, were the spot guards and
finally, P.W.16, Rohit Kumar Jena, is the I.O.
6. The learned trial Court having believed the evidence of the
prosecution witnesses found the prosecution to have proved its case
beyond all reasonable doubt and held the Appellant guilty and
convicted him awarding sentence as described above.
7. Ms. Chandana Tripathy, learned counsel for the Appellant,
submits that while the Appellant's statement under Section 313
Cr.P.C. acknowledges the occurrence, the circumstances
surrounding the case do not align with the allegations of a
premeditated murder. The circumstances presented by the
prosecution fail to establish a clear and unequivocal motive that
would have prompted the Appellant to commit the murder of his
wife. According to the learned counsel, the fact that the Appellant
and the deceased were in an ongoing, albeit, troubled marital
relationship does not necessarily imply a murderous intention. She
further submits that the prosecution has also failed to establish a
complete chain of circumstance to support the conviction. Since,
the Appellant was not seen actively committing the offence, or any
direct evidence, and the prosecution's reliance on the fact that the
Appellant was the last person to be seen in the deceased's company
is not conclusive. There are several possibilities that have not been
properly considered, and the evidence does not exclude other
possible explanations of the events leading to the death of the
deceased. Ms. Tripathy asserts that the absence of a specific
explanation should not automatically be equated with guilt, as it is
not uncommon for a person facing charges of such severity to be
confused, distressed, or reluctant to provide a detailed explanation.
Further, the burden of proof lies with the prosecution, and not
providing an explanation does not shift the burden from the
prosecution to the Appellant. The counsel further submits that there
are several plausible alternative explanations for the deceased's
death that have not been adequately explored by the prosecution.
She finally concludes that the prosecution has not proved its case
beyond all reasonable doubt and the circumstantial evidence
presented does not conclusively point to the Appellant as the
perpetrator of the crime and therefore, the Appellant is entitled to be
acquitted of charges leveled against him.
8. Mr. Jateswar Nayak, learned AGA for the State, argues that
the Appellant, through his statement under Section 313 Cr.P.C., has
candidly acknowledged his involvement in the death of his wife,
which admittedly, is not the sole ground for conviction but such
admission coupled with the surrounding circumstances and
evidence, strongly attributes to the culpability of the Appellant in
the murder. Mr. Nayak contends that the prosecution has
established a clear motive for the crime in the form of marital
discord and dowry-related harassment. The deceased's father and
witnesses have testified that the Appellant had a history of ill-
treatment and physical and mental abuse towards his wife and his
conduct as a husband, including his violent tendencies, demands for
dowry, and the ongoing abusive nature of their relationship, paints a
clear picture of his hostile attitude towards the deceased. This
motive for murder, driven by frustration, and financial strain,
provides a reasonable explanation for the Appellant's actions and is
substantiated by the evidence provided by the prosecution. He
further asserts that while there may be no direct evidence to the
crime, the circumstantial evidence against the Appellant is
overwhelming. The prosecution has presented a coherent and
consistent chain of events that leads to the only reasonable
conclusion that the Appellant is the perpetrator of the crime. The
last-seen theory clearly establishes that the Appellant and the
deceased were in close proximity before the occurrence, and the
Appellant was the last person to be with his wife before her death.
Furthermore, the weapon, a crowbar, recovered at the instance of
the Appellant, and the fact that the injuries on the deceased's body
were caused by a similar instrument, strongly point towards the
Appellant as the person who caused the fatal injuries. Mr. Nayak
argues that as per Section 106 of the Indian Evidence Act, the
burden of explanation would rest on the Appellant, especially since
he was the last person seen in the company of the deceased and was
present in a situation where he could have provided an explanation
for her death. The Appellant's silence and failure to offer a
reasonable explanation as regards the circumstances constituting the
death of the deceased, his wife, and his conduct pre and post the
occurrence further highlights his guilt. Upon hearing his wife's
cries for help, the Appellant's decision to lock himself in a room is
inconsistent with the behaviour of an innocent person. A husband
who hears his wife's cries, especially one who is not involved in
any criminal activity, would naturally come to her aid. It is further
contented by the counsel that the defense's suggestion of an
alternative explanation for the death is purely speculative and
unsupported by evidence. There is no indication of any other person
being involved in the crime nor is there any plausible explanation
for the injuries sustained by the deceased that would exonerate the
Appellant. He finally prays that the conviction and sentence passed
by the learned Sessions Judge should be upheld, as the Appellant is
the true and only author of the crime.
9. In order to appreciate the aforesaid submissions, the
relevant provisions with respect to the charges are required to be
referred to -
Indian Penal Code, 1860
300. Murder. --Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or--
2ndly. --If it is done with the intention of causing such
bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is
caused, or--
3rdly. --If it is done with the intention of causing
bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or--
4thly. --If the person committing the act knows that it
is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as is
likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or
such injury as aforesaid.
302. Punishment for murder.--Whoever commits
murder shall be punished with death or [imprisonment
for life], and shall also be liable to fine.
Indian Evidence Act, 1872
8. Motive, preparation and previous or subsequent
conduct.--Any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue
or relevant fact. The conduct of any party, or of any
agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to
any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or
subsequent thereto.
Explanation 1. --The word "conduct" in this section
does not include statements, unless those statements
accompany and explain acts other than statements; but
this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2. --When the conduct of any person is
relevant, any statement made to him or in his presence
and hearing, which affects such conduct, is relevant.
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.
10. Having regard to the arguments advanced by the learned
counsels for the respective parties, it is incumbent to deal with the
testimonies of the relevant witnesses for better appreciation of the
case.
11. P.W.1 is the uncle of the deceased who establishes a history
of discord between the deceased and her in-laws. He noted that
there were frequent quarrels involving the deceased, though he did
not witness any physical violence directly. He further confirmed
that his brother, P.W.3, filed the FIR against the Appellant after the
deceased's death. Although his testimony does not offer specifics
on the events of the day of occurrence, it supports the claim of a
troubled marital relationship and hints at an environment where the
deceased faced frequent conflicts in her matrimonial home.
12. P.W.2, the father of the Appellant, recounted that his son
and the deceased often quarreled, which he attempted to resolve on
multiple occasions. P.W.2, further stated that, on the day of the
occurrence, he had seen the deceased in a healthy and active state.
He categorically stated to have seen his son in the company of his
daughter-in-law in their room, right before the occurrence. Later, he
heard her loud cries, "Maalo Marigali" (implying she was being
harmed). When he entered the room, he found the deceased with
stab injuries and blood pooling around her, while his son was
locked inside another room. Under cross-examination, P.W.2
mentioned that the Appellant had become mentally unstable due to
poverty, frequently wandering in search of food. Though he
claimed not to have witnessed the actual murder, his testimony
places the Appellant in a compromising position by highlighting his
unusual behaviour following the occurrence.
13. P.W.3, the father of the deceased, provided a detailed
testimony regarding the dowry given during the marriage, including
cash and valuable items, which he claimed was demanded by the
Appellant's family. He testified that his daughter was initially
happy but soon began facing mistreatment, verbal abuse, and
physical assault from her husband, often driven by the Appellant's
demand to sell her gold ornaments. On the day of the occurrence,
P.W.3 received a call informing him of his daughter's death. Upon
arriving at the hospital, he observed multiple stab wounds on her
body, reinforcing his suspicion that the Appellant was responsible
for her murder. In cross-examination, he admitted he had not
reported prior incidents of torture to the authorities, which could
imply reluctance or an attempt to preserve family harmony. His
statement establishes a clear motive for violence, painting a picture
of escalating harassment that culminated in the murder.
14. P.W.6, a medical officer at the District Headquarters
Hospital in Jajpur, examined the Appellant shortly after the
occurrence. He testified that he found no external injuries on the
Appellant.
15. P.W.8, the brother of the deceased, corroborated his father's
account by detailing the dowry demands made at the time of
marriage. He stated that his sister initially lived happily with the
Appellant but soon became a victim of ill-treatment, especially as
the Appellant allegedly began harassing her for more money and
eventually sold her gold ornaments to meet his financial wants.
P.W.8 stated that on the day of the occurrence, the Appellant
stabbed his sister in the abdomen and chest. During cross-
examination, he confirmed his presence during dowry discussions
but admitted that no formal complaint had been made about these
demands prior to the occurrence. Although, he did not witness the
murder, his testimony supports a pattern of escalating abuse by the
Appellant.
16. P.W.9, a neighbor of the couple, provided background
information on the nature of the relationship between the Appellant
and the deceased. He observed that their relationship had
deteriorated over time, and he mentioned that the Appellant
appeared to have developed signs of instability a few years after
marriage.
17. P.W.12, the mother of the Appellant, initially testified in
Court that she heard the deceased cry out "Maalo Marigali" on the
day of the occurrence. She stated that upon entering the room, she
found the deceased dead but did not know how she died.
18. Before analysing the culpability of the Appellant vis-á-vis
the murder of his wife in her matrimonial house, it is incumbent to
examine if the prosecution could successfully establish the death of
the Appellant's wife to be homicidal in nature.
19. P.W.13, the medical officer who performed the post-
mortem examination, in his report, observed the following:
1) One stab wound of size 1.5 c.m. × 0.5 c.m. × 3
c.m. deep over spine near mid line at 1st lumber
vertebra level.
2) One penetrating wound of size 1.5 c.m. × 0.5
c.m. × about 10 c.m. deep 1 c.m. right lateral to
mid line back at 12th thoracic vertebra level
3) One penetrating wound of size 1.5 c.m. × 0.5
c.m. × about 7 c.m. 1 c.m. left lateral to umbilicus
4) One penetrating wound 1.5 c.m. × 0.5 c.m. × 7
c.m. at left renal angle-lateral aspect of abdomen.
5) One penetrating wound 1.5 c.m. × 0.5 c.m. ×
about 10 c.m. - 5 c.m. above umbilicus over
Abdomen in the mid line.
6) One penetrating wound 1.5 c.m. × 0.5 c.m. × 1
c.m. deep - 3 c.m. below right mastoid.
7) One lacerated wound of 3 c.m. × 0.5 c.m. × S.D.
medial to right pinna of ear.
8) Two number of stabs wound 1.5 c.m. × 0.5 c.m.
× 1 c.m. deep each over right shoulder-Deltoid
region.
9) One stab wound 1.5 c.m. × 0.5 c.m. deep - 5
c.m. above right acromion process over base of
neck.
10) Multiple lacerated injury of size 1.5 c.m. × 0.5
c.m. × skin deep over neck.
11) Two number of stab wounds of size 1.5 c.m. ×
0.5 c.m. × 2 c.m. deep over left shoulder.
The evidence of the medical officer, P.W.13, provides
decisive evidence establishing the nature of death. In his report,
P.W.13 identified numerous injuries across her body including
multiple stab and penetrating wounds concentrated around the vital
organs such as chest, abdomen, and back. The wounds were opined
to be inflicted with a "hard weapon having a flattened end and no
sharp edge," which aligns with the seized weapon, a crowbar. The
nature, extent, and positioning of these injuries indicate a deliberate
attack, not a random or accidental one. Furthermore, P.W.13
reported significant internal bleeding, with approximately 2 liters of
blood in the abdominal cavity and 500 ml in the pleural cavities,
leading to hemorrhagic shock. The fatal wounds impacted vital
organs like the lungs and liver, further substantiating the assertion
that the injuries were inflicted with lethal intent.
P.W.13 confirmed that the injuries were ante-mortem, thus
ruling out post-mortem interference or accidental causes. Under
cross-examination, he explicitly dismissed the notion that these
injuries could result from a fall, emphasising that only an
intentional, violent assault could explain the injuries observed.
Consequently, the detailed medical findings firmly establish that the
nature of the deceased's death was homicidal.
20. Coming to the culpability of the Appellant, it is essential to
assess the prosecution's evidence in detail, evaluating the
witnesses' testimony and the circumstances leading to determine
whether the allegations against the Appellant are substantiated
beyond reasonable doubt.
21. The case of the prosecution is indeed based on
circumstantial evidence and it is trite law that in a case of
circumstantial evidence, before reaching a conclusion, the Court is
required to examine the evidence on the touchstone of the decision
said to be locus classicus reported in the matter of Sharad Birdhi
Chand Sarda vs. State of Maharashtra reported in AIR 1984 SC
1622 as follows -
"3:3. Before a case against an accused vesting on
circumstantial evidence can be said to be fully
established the following conditions must be
fulfilled as laid down in Hanumant's v. State of M.P.
[1953] SCR 1091.
1. The circumstances from which the conclusion of
guilt is to be drawn should be fully established;
2. The facts so established should be consistent with
the hypothesis of guilt and the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive
nature and tendency;
4. They should exclude every possible hypothesis
except the one to be proved; and
5. There must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
These five golden principles constitute the
panchsheel of the proof of a case based on
circumstantial evidence and in the absence of a
corpus deliciti.
Hanumant v. The State of Madhya Pradesh [1952]
SCR 1091; Tufail (Alias) Simmi v. State of Uttar
Pradesh [1969] 3 SCC 198; Ramgopal v. State of
Maharashtra AIR 1972 SC 656; and Shivaji
Sahabrao Babode & Anr. v. State of Maharashtra
[1973] 2 SCC 793 referred to.
3:4. The cardinal principle of criminal jurisprudence
is that a case can be said to be proved only when
there is certain and explicit evidence and no pure
moral conviction."
22. Keeping in mind the above principles when the case in hand
is examined the foremost in the crime being motive is required to be
seen if found established.
23. As testified by the deceased's father (P.W.3), and her
brother, (P.W.8), at the time of the marriage of Appellant and the
deceased, the deceased's family provided sufficient dowry in kind
and in cash on demand. However, despite this substantial dowry,
their evidence suggests that the Appellant continued to harass and
abuse the deceased even demanding that she surrender her personal
jewellery, which he then sold to address his financial needs.
Witness accounts further reveal that the Appellant frequently ill-
treated the deceased, often under the influence of alcohol. He was
unemployed and displayed erratic behaviour, which worsened over
time. His habitual drunkenness and unemployment exacerbated his
dependence on deceased's family, prompting further dowry
demands and creating a continuous cycle of exploitation and
mistreatment. The deceased's family intervened on multiple
occasions attempting to restore harmony and resolve their disputes
to ensure her safety and well-being, however, these efforts proved
to be temporary solutions to deep-rooted issues.
P.W.9, the neighbour, corroborated the above evidence
observing frequent quarrels between the couple, which further
indicates that the discord was not a hidden or private matter but one
evident to others in the community. The marital discord between
the Appellant, and his deceased wife, is characterised by persistent
abuse, financial instability, and unrelenting demands for dowry,
painting a picture of a strained relationship rife with conflict and
control.
This part of the prosecution evidence found not controverted
either to its genesis or otherwise can safely be held proved as
motive against the murder.
24. Next come the circumstance as to the last-seen theory. It
is held in the matter of Satpal vs. State of Haryana reported in
(2018) 6SCC 610, para 6, with regard to appreciation of last-seen
theory along with the burden of proof as corroborative evidence in
forming a chain circumstance, as under: -
"Criminal jurisprudence and the plethora of judicial
precedents leave little room for reconsideration of
the basic principles for invocation of the last seen
theory as a facet of circumstantial evidence.
Succinctly stated, it may be a weak kind of evidence
by itself to found conviction upon the same
singularly. But when it is coupled with other
circumstances such as the time when the deceased
was last seen with the accused and the recovery of
the corpse being in very close proximity of time, the
accused owes an explanation under Section 106 of
the Evidence Act with regard to the circumstances
under which death may have been taken place. If the
accused offers no explanation, or furnishes a wrong
explanation, absconds, motive is established and
there is corroborative evidence available inter alia in
the form of recovery or otherwise forming a chain of
circumstances leading to the only inference for guilt
of the accused, incompatible with any possible
hypothesis of innocence, conviction can be based on
the same. If there be any doubt or break in the link
of chain of circumstance, the benefit of doubt must
go to the accused. Each case will therefore have to
be examined on its own facts for invocation of the
doctrine"
25. As expounded above in Satpal vs. State of Haryana (Supra),
Last-seen theory is an essential component of circumstantial
evidence, which requires careful application to ensure just
conclusions. The Hon'ble Supreme Court observed that the last-seen
theory while not strong enough on its own to establish guilt beyond
reasonable doubt, gains significant weight when combined with other
incriminating circumstances, such as the close timing between the
accused being seen with the deceased and the discovery of the
deceased's body.
In the instant case, the prosecution establishes that the
deceased, was last seen alive in the company of the Appellant in
their room on the night of her death. The testimonies of witnesses,
particularly from the Appellant's own family, such as P.W.2, the
Appellant's father and P.W.12, the Appellant's mother have
unequivocally corroborated the last-seen theory. Ordinarily, as
parents, P.Ws. 2 and 12 might have had a vested interest in
shielding their son from legal consequences, however, their
statements are consistent with the prosecution's case, adding
significant weight to the last-seen theory. Both witnesses confirmed
that just before the occurrence they saw the Appellant and the
deceased together in their separate room within the same house.
They also recounted hearing the deceased's loud cries and, upon
rushing to the room, discovered her body in a severely injured state
and the Appellant found concealed himself closing the door of the
adjacent room though it was expected from the Appellant not only
to rush to her aid when she screamed for help, but also to follow the
perpetrator, if any, whereas he not only failed to appear in the scene
but also exhibited evasive behaviour by locking himself in a
separate room which is not only an unusual conduct but a strong
circumstance unerringly pointing to his guilt as the perpetrator.
Such conduct of the Appellant further exposes him to be the author
of the crime as he did not offer any explanation whatsoever for the
fatal injuries inflicted upon his wife despite her being found in a
room where they both resided. Given the close proximity and
timing, and the fact that they were alone together in their room, the
circumstances of her death fall under the Appellant's exclusive
knowledge. The nature of the occurrence, an unnatural and violent
death imposes upon the Appellant an expectation to explain how
such a tragic event unfolded in his presence. His failure to provide a
reasonable explanation creates a substantial inference of guilt under
Section 106 of the Evidence Act, as he alone could elucidate the
circumstances under which the deceased sustained fatal injuries.
This silence, when viewed in conjunction with his proximity to the
deceased at the time of her death, implies a conscious effort to
evade responsibility or acknowledgment of his role.
26. Under these conditions, the Appellant has a duty under
Section 106 of the Evidence Act to explain the circumstances
surrounding the death, as this knowledge lies exclusively within his
domain. Needless to mention that under section 106 of the Indian
Evidence Act, the burden of proof shifts to the accused when facts
are within his exclusive knowledge. This section operates as an
exception to the general rule that the prosecution must prove the
guilt of the accused beyond a reasonable doubt. Section 106 applies
in cases where specific circumstances surrounding a crime lie solely
within the accused's knowledge, requiring him to provide an
explanation, particularly when the crime occurs in a confined or
controlled environment to which only he had access. When a person
is last seen with the deceased and the death occurs in a manner that
is unnatural, unexplained, or violent, the person in close proximity
or having special knowledge of the occurrence is reasonably
expected to offer an account that sheds light on the circumstances
surrounding the death, especially when he is the husband of the
deceased.
The rationale behind the application of Section 106 of the
Indian Evidence Act, here, is that while the prosecution has
successfully presented a prima facie case by establishing the last-
seen evidence, the burden shifts to the Appellant to rebut these
circumstances because they involve facts that only he could reveal.
This failure to clarify the situation or to account for the occurrence
reflects adversely on his defense and suggests an intention to
conceal his culpability. The Appellant's silence, in the absence of
any reasonable alternative theory or evidence pointing to his
innocence, therefore, stands as a substantial circumstantial link,
solidifying his involvement in the crime.
27. Coming to the conduct of the Appellant in the entire episode
of the crime, it is worth to mention that Section 8 of the Indian
Evidence Act, 1872, allows the conduct of the accused to be
considered as relevant evidence in relation to the crime he is
charged with. It permits the Court to evaluate the Appellant's
behaviour before and after the crime to infer their state of mind,
intention, or knowledge. Such conduct can provide valuable
insights into whether the accused is guilty or innocent, with actions
that suggest evasion or concealment potentially pointing towards a
consciousness of guilt.
28. The Hon'ble Supreme Court in the matter of Harendra Rai
vs. The State of Bihar & Ors. reported in 2023 INSC 738, has also
addressed the relevancy of conduct of the accused in a crime -
"Issue (B): - Conduct of the accused-Section 8:
70. In the case in hand, the conduct of the accused is
not only relevant under Section 8 of the Evidence
Act but is also one of the major circumstances to
arrive at a conclusion about his guilt. Section 8 of
the Evidence Act is being reproduced hereinafter:
"8. Motive, preparation and previous or
subsequent conduct. -- Any fact is relevant
which shows or constitutes a motive or preparation
for any fact in issue or relevant fact. The conduct
of any party, or of any agent to any party, to any
suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue
therein or relevant thereto, and the conduct of any
person an offence against whom is the subject of
any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or
subsequent thereto."
The illustration (e) of Section 8 throws some light on
the case in hand and is significant in the present
matter, which is being reproduced hereinafter:
"Illustration (e) -A is accused of a crime. The facts
that, either before or at the time of, or after the
alleged crime, A provided evidence which would
tend to give to the facts of the case an appearance
favourable to himself, or that he destroyed or
concealed evidence, or prevented the presence or
procured the absence of persons who might have
been witnesses, or suborned persons to give false
evidence respecting it, are relevant."
71. In a very interesting case of Anant Chintaman
Lagu v State of Bombay AIR 1960 SC 500, this
Court, while holding the accused of that case guilty
of murder, has touched on the aspects of relevancy
of conduct of the accused subsequent to the incident
in question, and its inference by the Court to decide
the guilt and innocence of the accused. Relevant
extracts from the aforesaid judgement are quoted
herein below:
"...A criminal trial, of course, is not an enquiry
into the conduct of an accused for any purpose
other than to determine whether he is guilty of the
offence charged. In this connection, that piece of
conduct can be held to be incriminatory which has
no reasonable explanation except on the hypothesis
that he is guilty. Conduct which destroys the
presumption of innocence can alone be considered
as material...
***
What inference can be drawn from his conduct
after the death of Laxmibai is a matter to be
considered by us. And in this connection, we can
only say at this stage that if some prior conduct is
connected intrinsically, with conduct after death,
then motive of the Appellant would be very clear
indeed...
***
These arguments, however, are of no avail, in view
of the Appellant's entire conduct now laid bare,
which conduct has been proved to our satisfaction
to have begun not after the death of Laxmibai but
much, earlier. This conduct is so knit together as to
make a network of circumstances pointing only to
his guilt..."
29. In the instant case, the Appellant deliberately distanced
himself from the scene of crime, rather than offering help or
providing an explanation. According to the testimonies of his
parents P.Ws. 2 and 12, on the night of the occurrence, the deceased
cried out for help, shouting "Maalo Marigali." This was a desperate
call that would naturally alarm anyone within earshot. It is
significant that the Appellant's parents, who lived in a separate
room in the same house of that of the place of occurrence,
immediately responded to the cries and rushed to the scene.
Similarly, neighbours also came to the house after hearing the
commotion. In contrast, the Appellant did not emerge from his
room. Instead of coming to his wife's aid, he locked himself inside
another room, deliberately isolating himself from the situation.
The Appellant's above discussed conduct is inconsistent
with that of a concerned husband and raises a strong inference of
guilt. His failure to act in a manner that one would expect from a
husband who should ideally seek help or explain the situation
further strengthens the prosecution's case. The Appellant's
behaviour reflects a deliberate attempt to avoid scrutiny, which,
when considered in conjunction with the other circumstantial
evidence point towards the guilt of the Appellant.
30. Moreover, the seizure of the weapon at the instance of the
Appellant is a pivotal piece of evidence. The crowbar, locally
known as "Hansakala," was recovered at the instance of the
Appellant, further solidifying his involvement in the crime. The
recovery of the weapon from the Appellant's residence, coupled
with the nature of the injuries sustained by the deceased, leaves no
room for doubt regarding the Appellant's role in the crime. Another
significant circumstance is the detection of human blood in the
seized lungi (loin cloth) worn by the Appellant at the time of
occurrence. As per the CE report, proved vide Exhibit 15, human
blood was detected on the Appellant's lungi. While the specific
blood group could not be determined due to the deterioration of the
sample, the presence of human blood on the Appellant's apparel
puts him on a position to provide an explanation to prove his
dissociation from the occurrence. His silence and inability to
provide a satisfactory explanation for this incriminating evidence
suggests a conscious evasion, contributing to the inference of guilt.
This unexplained blood stain on his apparel thus forms a
compelling link in the chain of circumstances, pointing towards the
Appellant's involvement in the crime and further reinforcing the
overall integrity of the prosecution's case
31. Lastly, it is incumbent upon this Court to address the
admission made by the Appellant during his examination under
Section 313 of the Cr.P.C., that reads as -
"313. Power to examine the accused. - (1) In every
inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances
appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the
accused, put such questions to him as the Court
considers necessary;
(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his
defence, question him generally on the case:
Provided that in a summons case, where the Court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or
by giving false answers to them.
(4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into,
or trial for, any other offence which such answers
may tend to show he has committed."
32. In the case of Dehal Singh vs. State of Himachal Pradesh
reported in AIR 2010 SC 3594, the Apex Court has observed that -
"21... Statement under Section 313 of the Code of
Criminal Procedure is taken into consideration to
appreciate the truthfulness or otherwise of the case
of the prosecution and it is not an evidence.
Statement of an accused under Section 313 of the
Code of Criminal Procedure is recorded without
administering oath and, therefore, the said statement
cannot be treated as evidence within the meaning
of Section 3 of the Evidence Act. The Appellants
have not chosen to examine any other witness to
support this plea and in case none was available they
were free to examine themselves in terms of Section
315 of the Code of Criminal Procedure which, inter-
alia, provides that a person accused of an offence is
a competent witness of the defence and may give
evidence on oath in disproof of the charges. There is
reason not to treat the statement under Section
313 of the Code of Criminal Procedure as evidence
as the accused cannot be cross- examined with
reference to those statements. However, when an
accused appears as a witness in defence to disprove
the charge, his version can be tested by his cross-
examination..."
Further, in the matter of Raj Kumar Singh @ Raju @ Batya
vs. State of Rajasthan reported in AIR 2013 SC 3150, the Apex
Court held that -
"25. In a criminal trial, the purpose of examining the
accused person under Section 313 Cr.P.C., is to meet
the requirement of the principles of natural justice
i.e. audi alterum partem. This means that the
accused may be asked to furnish some explanation
as regards the incriminating circumstances
associated with him, and the Court must take note of
such explanation. In a case of circumstantial
evidence, the same is essential to decide whether or
not the chain of circumstances is complete. No
matter how weak the evidence of the prosecution
may be, it is the duty of the Court to examine the
accused, and to seek his explanation as regards the
incriminating material that has surfaced against him.
The circumstances which are not put to the accused
in his examination under Section 313 Cr.P.C.,
cannot be used against him and have to be excluded
from consideration."
In Munish Mubar vs. State of Haryana reported in AIR
2013 SC 912, the Apex Court has held that -
"24. It is obligatory on the part of the accused, while
being examined under Section 313 Cr.P.C. to furnish
some explanation with respect to the incriminating
circumstances associated with him, and the Court
must take note of such explanation, even in a case of
circumstantial evidence, so to decide, whether or
not, the chain of circumstances is complete. The
aforesaid judgment has been approved and followed
in Musheer Khan v. State of Madhya Pradesh,
(2010) 2 SCC."
The same view was taken in the case of Transport
Commissioner, Andhra Pradesh, Hyderabad and Another sv.
Sardar Ali and Another; AIR 1983 SC 1225. In the matter of
Munish Mubar vs. S tate of Haryana (Supra), the Apex Court has
observed the following as well -
"20. Undoubtedly, in a case of circumstantial
evidence, all the circumstances must be fully
established and all the facts so established, must be
consistent with the hypothesis regarding the guilt of
the accused. The circumstances so established,
should exclude every other possible hypothesis
except the one sought to be proved. The
circumstances must be conclusive in nature.
Circumstantial evidence is a close companion of
factual matrix, creating a fine network through
which there can be no escape for the accused,
primarily because the said facts, when taken as a
whole, do not permit us to arrive at any other
inference but one, indicating the guilt of the
accused."
33. In sum total, the provision under section 313 Cr.P.C., as
above, provides the accused an opportunity to explain the
circumstances of the case that are against him, based on the
evidence presented during the trial. However, it is important to note
that the statement made by the accused during such examination
may not take the place of "evidence" per se but can safely be used
as "relevant" to the circumstances when assessed in conjunction
with other pieces of evidence. Here, the Appellant admitted during
his examination under Section 313 Cr.P.C. that he had committed
the murder of his wife, Manika, using the Hansakala. However, this
statement was made in response to specific questions posed by the
Court during the Section 313 Cr.P.C. examination. In the instant
case, the Appellant's admission can be interpreted as an
acknowledgment relevant to his guilt and is significant when
viewed alongside the other circumstantial evidence such as the
seizure of the weapon from the Appellant's premises, his behaviour
following the occurrence i.e. locking himself in a room and not
coming to his wife's aid, and the medical evidence confirming the
fatal injuries caused by the weapon, blood stain wearing apparel
found with blood of human origin and above all an absence of
explanation of any kind as regards the circumstance as to the cause
of fatal injuries sustained by the deceased in his presence.
34. In light of the discussions as above, cumulatively, the
prosecution has meticulously established a cogent, consistent, and
unbroken chain that leads inexorably towards the guilt of the
Appellant and the principles laid down in Sharad Birdhi Chand
Sarda vs. State of Maharashtra (Supra) have been fully met, as
each piece of evidence reinforces the hypothesis of the Appellant's
culpability and excludes any other reasonable theory of his
innocence. The marital discord, last-seen evidence, non-explanation
under Section 106 of the Indian Evidence Act as to the
circumstance of fatal injuries on the deceased, incriminating
conduct, recovery of the weapon, blood stain on the wearing
apparel and the medical evidence, all interlink to form a
comprehensive and reliable chain of circumstance, leaving no room
for doubt and establishes a strong connection between the
Appellant's behaviour and the eventual tragedy, and the Appellant
is, thus, liable for having committed the murder of his wife.
35. Hence, the Judgment and Order dated 21.11.2013 by the
learned Sessions Judge, Jajpur is found to be legal and justified and
the conviction of the Accused-Appellant is confirmed. Since the
sentence awarded is absolutely in accordance with law, there is
nothing to interfere therewith.
36. As a result, the Appeal stands dismissed being devoid of
merit.
Before parting with the case, we would like to put on
record our appreciation to Ms. Chandana Tripathy, Advocate for
the Appellant, for rendering her valuable help and assistance
towards arriving at the decision above mentioned. This Court also
appreciates the valuable help and assistance provided by Mr.
Jateswar Nayak, learned Addl. Government Advocate.
(Chittaranjan Dash)
Judge
(S.K. Sahoo)
Judge
K.C.Bisoi
Location: HIGH COURT OF ORISSA
