1. The present appeal has been filed by the appellants
challenging a judgment and order dated 28.02.2014 passed by the
learned Additional Sessions Judge, Athagarh, Dist-Cuttack in Sessions
Trial No.73 of 2012 whereby the appellants have been held guilty of
the offence punishable under Sections 302/201 read with Section 34 of
the Indian Penal Code (IPC) and have been sentenced to imprisonment
for life with a fine of Rs.20,000/- for the offence punishable under
Section 302 read with 34 of the IPC. No separate sentence has been
imposed for the offence punishable under Section 201 read with
Section 34 of the IPC.
2. A written report of the informant-Papun Kumar Patri
addressed to the Inspector-in-Charge (IIC), Athagarh Police Station
dated 17.07.2010 is the basis for registration of Athagarh P.S. Case
No.132(4) of 2010 disclosing commission of offence punishable under
Sections 302/201 read with Section 34 of the IPC concerning an
occurrence, which had taken place in the night of 16/17.07.2010.
3. It is evident from the FIR that the informant is the son of
younger brother of the deceased. He alleged in the written report that
the deceased had built a temple in the village Kadampatna and
appellant No.1 was appointed as the priest of the said temple. The
appellant No.2, the wife of appellant No.1 was working as 'Kalishi'. At
about 5 pm on 16.07.2010 the deceased informed the informant that he
was going to the house of the appellant No.1 for recovery of money
and would not return home in the night and would stay in the house of
appellant No.1. Next morning, the mobile phone of the deceased was
found to be out of coverage area. Thereafter, the informant with a co-
villager Dipak Kumar Panda (PW 9) proceeded to search for the
deceased whereafter they noticed the scooter of the deceased lying in a
paddy field. They also noticed smoke coming out of the house of the
appellants. They further found that the dead body of the deceased was
lying with 80 percent of his body already burnt. However, he could
identify the deceased with his face. He alleged that he knew that there
was some dispute between the appellant No.1 and the deceased over
money transaction and that was the reason, why the appellant No.1, his
wife and his son had jointly killed him and with an intention to destroy
the evidence, they burnt the house which was built by the deceased.
After registration of the criminal case, the place of occurrence was
visited by the investigating officer who conducted the inquest, sent the
dead body of the deceased for post-mortem examination and seized
certain materials for forensic examination in a State Forensic Science
Laboratory.
4. After completion of the investigation, charge sheet was
submitted against the appellants. One Sudhakar Pani, son of these
appellants' was also named in the FIR was found to be a juvenile and
accordingly, he was forwarded to the Juvenile Justice Board.
5. The persons sent up for trial by the police including these
appellants were charged of commission of offence punishable under
Sections 302 and 201 read with Section 34 of the I.P.C.
6. At the trial, the prosecution, in order to prove the charge
examined altogether 27 witnesses. In addition to the oral evidence of
the prosecution witnesses, the prosecution also brought on record
documentary evidence by marking exhibits including the report
prepared by the DFSL, Cuttack, the post-mortem report and, also the
injury report showing burn injuries found on the palm of appellant
No.2. The prosecution set up at the trial a case that the son of the
deceased Sanjib Kumar Patri (PW 10) was suffering from various
diseases and despite having been provided with adequate medical
treatment, as he was not recovering, some sort of ritual (puja) was
performed under the guidance of the appellants. The deceased believed
that because of the rituals performed by the appellants with the
blessings of a goddess, the diseases of his son could be cured. The
appellants had thereafter persuaded the deceased to construct a
permanent temple for the deity. Further, upon assurance of repayment
of money by the appellants, the deceased had provided funds for
construction of the temple and a thatched house for shelter of the
appellants. The deceased was making requests for repayment of money
several times but the appellants had disappointed him. Upon analyzing
the evidence of the witnesses to the aforesaid effect, the trial Court has
recorded conviction of the appellants.
7. It has been argued by the learned counsel appearing on behalf
of the appellants that the finding of conviction recorded by the trial
Court based on circumstantial evidence is not at all sustainable for the
reason that the chain of circumstances is not complete so as to arrive at
a definite conclusion that the offence of murder was committed by
these appellants. PWs 1, 4 and 8 and other witnesses are post
occurrence witnesses and their testimonies suffer from material
contradictions and inconsistencies. Further the evidence of PWs 2, 6
and 11 do not substantiate involvement of the present appellants. In
any view of the matter, their depositions at the trial is not consistent
with their statements made before the police during the investigation
under Section 161 of the Cr.P.C.
8. It is the stand on behalf of the State-respondent, on the other
hand, that the impugned finding of conviction does not suffer from any
illegality requiring this Court's interference.
9. We have perused the evidence brought on record at the trial
to substantiate the charge and we have given our thoughtful
consideration to the submissions advanced at the bar.
10. It is patent that it is a case of circumstantial evidence.
Following circumstances were attempted to be proved at the trial by
the prosecution to establish the charge against the appellants:-
(iv) The appellants failed to explain the burn injuries on the dead
body of the deceased in their thatched house which facts were within
the knowledge of the appellants.
(v) The SO DFSL (PW 22) during the spot visit had collected
one crowbar (MO 1) stained with blood and one printed lungi (MO 2)
lying in the South-Eastern corner side of the temple.
11. The circumstances which emerged based on the evidence of
the prosecution against the appellants were explained to them in the
examination under Section 313 of the Cr.P.C. by the learned trial
Court. Following 20 questions were put by the learned trial Court to
appellant No.1 which he answered in negative :-
"Q.1. It transpires from the evidence of prosecution witnesses and FIR
(Ext-1) lodged by P.w.1 (Papun Kumar Patri) resident of Mancheswar,
nephew of deceased Parsuram Patri, priest of Lord Dhabaleswar that
the son of his elder farther namely Sanjib Kumar Patri (P.w.10) was
suffering from ill-ness two years prior to 16.07.10 in spite of availing
different medical treatments he was not recovered from the ill-ness.
What have you got to say?
Ans: Mu jani nahi ( I don‟t know).
Q.2. it transpires from the evidence of prosecution witnesses that
getting information that with the blessing of Bai Thakurani of village
kadampatna where you accused (Sarata) was the priest and your wife
accused (Tilotama) was the Kalishi of Bai Thakurani were curing
ailing persons and on such information he visited to you on several
occasions with his ailing son and wife and with your effort and
blessing of Bai Thakurani his son Sanjib (p.w.10) was recovered from
ill-ness. What have you got to say?
Ans: Michha Katha (False talk).
Q.3. It transpires from the prosecution witnesses that when the son of
deceased was cured from ill-ness he reposed confidence on you and
visited to Goddess Bai Thakurani Several times and you both accused
persuaded the deceased to construct a temple for Baithakurani and to
give 3 to 4 laks for construction of the same with the assurance that
you would refund the amount and accordingly the deceased paid
rupees 3 to 4 laks for construction of temple from his own fund,
borrowing from his son-in-law, brother-in-law and others and the
temple was constructed and at the time of giving money the deceased
had requested both you to refund the amount before the marriage of his
daughter but did not return in spite of his several request. What have
you got to say?
Ans: Michha (False).
Q.4. It transpires from the evidence of prosecution witnesses that the
marriage of daughter of deceased was scheduled to be held in the
month of May 2010 and on that score the deceased requested you both
accused persons to refund the money but without paying the money you
both assured to repay the amount at the time of car festival when
Goddess Bai Thakurani would bestow gold coins. What have you got to
say?
Ans: Michha (False)
Q.5. It transpires from the evidence of prosecution witnesses that you
both the accused Sarata and Tilotama had a thatched house adjoin to
the temple of Bai Thakurani where you both were residing with your
sons and worshiping the deity. What have you got to say?
Ans: Michha (False).
Q.6. It appears from the evidence of prosecution witnesses that 3 days
prior to 16.07.10 P.w.8 Sakuntala Patri wife and P.w.10 Sanjib Ku.
Patri son of deceased had been to the house of Sasibhusan Mishra,
P.w.24 the brother of P.w.8. What have you got to say?
Ans: Mu jani nahi (I don‟t know).
Q.7. It transpires from Ext-1 (FIR), statement of P.w.1, P.w.5 and
P.w.10 that the deceased Parsuram Patri on 16.07.10 told his nephew
(p.w.1) and brother (p.w.5) that he was going to Kadampatna to collect
money from you Sarata and Tilotama as you had assured to refund the
money after car festival and he further told that he may not come in
night and stay in your house and saying so the deceased left his house
at 05 p.m. in his scooter and when he did not return his house in the
same night, in the morning of 17.07.10 his nephew P.w.1 telephoned
him but his phone did not respond and that thereafter, he informed
P.w.8, 10, his father P.w.7 and others and P.w.1 and others on
suspicion visited to Kadampatna Bai Thakurani temple. What have you
got to say?
Ans: Michha (False)
Q.8. It is in the evidence of P.w.11 (Sarata Kumar Samal) that 3 days
prior to his seeing the dead body of deceased he had seen the deceased
Parsuram Patri in your house Sarata and Tilotama. What have you got
to say?
Ans: Michha (False)
Q.9. It transpires from the evidence of prosecution witnesses that on
arrival of prosecution witnesses they found the scooter of the deceased
was parked in front of your house Prabhakara and on their arrival in
the Baithakurani temple they found somke coming from the thatched
house of you accused Sarata and Tilotama and through the broken
mud wall they saw the dead body of the deceased which was burnt
from neck to penis and on such P.w.1 lodged and FIR (Ext-1) whereby
investigation was taken up by P.w.27 ( Satyabrata Lenka) and services
of Scientific Team of DFSL was utilized. What have you got to say?
Ans: Michha (False)
Q.10. It is in the evidence of prosecution witnesses that when they
arrived near the temple they found the burnt dead body of the deceased
in your thatched house and they found mark of bleeding injuries on the
head, neck etc. of deceased. What have you got to say?
Ans: Michha (False)
Q.11. It is in the evidence of prosecution witnesses along with S.O.,
Amanulla Khan (p.w.22) and I.O. (p.w.27) that they visited the spot,
conducted polygraph test, utilized dog squad, took photograph of the
deceased and scene of occurrence, the I.O. conducted inquest over the
dead body vide Ext-2, seized the scooter of the deceased, a blood
stained crowbar and lungi, recovered from the temple of Bai
Thakurani seized vide Ext-5, wooden bamboo stick, Durga Ghee bottle
etc. found near the dead body seized vide Ext-6 and blood stained
earth, cigarette packet, plastic melted bottle, printed saree, mobile
cover stained with blood, burnt bone and ashes seized vide Ext-8, your
blood sample and nail clippings seized vide Ext-9. What have you got
to say?
Ans: Michha (False)
Q.12. It appears from the evidence of I.O., witness p.w.20 that the
sample blood of the deceased was collected by the doctor and the
blood stained red napkin was seized vide Ext-10, and the dead body
was sent for P.M. examination to S.D.M.O., Athgarh vide Ext-13 and
prayer of I.O. vide Ext-12 and requisition of SDMO, Athgarh to FMT
vide Ext-14 to conduct P.M. examination over the dead body and the
P.M. was conducted by P.w.21 (Dr. Amarendra Naik) and another
doctor and vide P.M. report Ext-11 he opined that the death of the
deceased was homicidal due to assault and that the exhibits M.O.-I to
IX were dispatched SFSL for chemical examination vide Ext-28. What
have you got to say?
Ans: Mu jani nahi, michha. (I don‟t know. False.)
Q.13. It is in the evidence of Dr. Batakrushan Mahala (p.w.23) that on
police requisition he examined you (Tilotama) and found burn injury
on you and proved your injury report marked as Ext-18. What have
you got to say?
Ans: Michha (False)
Q.14. It is in the evidence of the I.O. that the spot was demarcated by
P.w.26 (Amulya Kumar Das) Amin of Athgarh and P.w.26 proved the
map, report and compliance report. What have you got to say?
Ans: Michha (False)
Q.15. It is in the evidence of P.w.8 and others that you accused
(Pravakara) had been to the house of deceased and had brought money
for construction of temple of deity and the deceased was parking his
scooter in front of your house and on your production the I.O. seized
the book of Bai Thakurani Ext-23 vide Ext-22. What have you got to
say?
Ans: Michha (False)
Q.16. It is in the evidence of prosecution witnesses that the exhibits
were dispatched to SFSL vide Ext-28 for chemical examination and the
C.E. report Ext-16 and serologist report Ext-17 reveal that blood of
human origin of grouping „A‟ was found on mobile phone cover, saree,
lungi of deceased, hair of deceased, sample of blood of deceased and
napkin of deceased and the S.O. (p.w.22) visited the spot took
photographs vide Ext-3 to 3/8 and prepared his spot report vide Ext-
15. What have you got to say?
Ans: Michha (False)
Q.17. It is in the evidence of witnesses that you accused Sarata and
Tilotama by encroaching upon a Govt. land had constructed Bai
Thakurani Temple and thatched house. What have you got to say?
Ans: Michha (False)
Q.18. It is in the evidence of prosecution witnesses that you accused
Sarata, Tilotama and your son Sudhakara Pani by assaulting the
deceased in the temple of Bai Thakurani in between the night of 16/17-
07-10 murdered him and after murdering him shifted his dead body to
your thatched house and burnt his dead body by pouring ghee and
other oil. What have you got to say?
Ans: Michha (False)
Q.19. You have heard the evidence of P.w.s. adduced against you.
What you have to say more in this case?
Ans: Michhare a case hoichhi. Mu nirdosh. (This case has been
lodged falsely. I am innocent.)
Q.20. Do you want to adduce any evidence in your defence?
Ans: Haan (Yes)"
12. Similarly following circumstances were explained by
appellant No.2 before the learned trial Court:-
"Q.1. It transpires from the evidence of prosecution witnesses and FIR
(Ext-1) lodged by P.w.1 (Papun Kumar Patri) resident of Mancheswar,
nephew of deceased Parsuram Patri, priest of Lord Dhabaleswar that
the son of his elder farther namely Sanjib Kumar Patri (P.w.10) was
suffering from ill-ness two years prior to 16.07.10 in spite of availing
different medical treatments he was not recovered from the ill-ness.
What have you got to say?
Ans: Michha, miccha Abhijoga. (False case)
Q.2. It transpires from the evidence of prosecution witnesses that
getting information that with the blessing of Bai Thakurani of village
kadampatna where you accused (Sarata) was the priest and your wife
accused (Tilotama) was the Kalishi of Bai Thakurani were curing
ailing persons and on such information he visited to you on several
occasions with his ailing son and wife and with you effort and blessing
of Bai Thakurani his son Sanjib (p.w.10) was recovered from ill-ness.
What have you got to say?
Ans: Michha (False)
Q.3. It transpires from the prosecution witnesses that when the son of
deceased was cured from ill-ness he reposed confidence on you and
visited to Goddess Bai Thakurani Several times and you both accused
persuaded the deceased to construct a temple for Baithakurani and to
give 3 to 4 laks for construction of the same with the assurance that
you would refund the amount and accordingly the deceased paid
rupees 3 to 4 laks for construction of temple from his own fund,
borrowing from his son-in-law, brother-in-law and others and the
temple was constructed and at the time of giving money the deceased
had requested both you to refund the amount before the marriage of his
daughter but did not return in spite of his several request. What have
you got to say?
Ans: Miccha kahichhanti. (False Talk)
Q.4. It transpires from the evidence of prosecution witnesses that the
marriage of daughter of deceased was scheduled to be held in the
month of May 2010 and on that score the deceased requested you both
accused persons to refund the money but without paying the money you
both assured to repay the amount at the time of car festival when
Goddess Bai Thakurani would bestow gold coins. What have you got to
say?
Ans: Michha (False)
Q.5. It transpires from the evidence of prosecution witnesses that you
both the accused Sarata and Tilotama had a thatched house adjoin to
the temple of BaiThakurani where you and you both were residing
with your sons and worshiping the deity. What have you got to say?
Ans: Michha (False)
Q.6. It appears from the evidence of prosecution witnesses that 3 days
prior to 16.07.10 P.w.8 Sakuntala Patri wife and P.w.10 Sanjib Ku.
Patri son of deceased had been to the house of Sasibhusan Mishra,
P.w.24 the brother of P.w.8. What have you got to say?
Ans: Michha (False)
Q.7. It transpires from Ext-1 (FIR), statement of P.w.1, P.w.5 and
P.w.10 that the deceased Parsuram Patri on 16.07.10 told his nephew
(p.w.1) and brother (p.w.5) that he was going to Kadampatna to collect
money from you Sarata and Tilotama as you had assured to refund the
money after car festival and he further told that he may not come in
night and stay in your house and saying so the deceased left his house
at 05 p.m. in his scooter and when he did not return his house in the
same night in the morning of 17.07.10 his nephew P.w.1 telephone him
but his phone did not respond and that thereafter, he informed P.w.8,
10, his father P.w.7 and others and P.w.1 and others on suspicion
visited to Kadampatna Bai Thakurani temple. What have you got to
say?
Ans: Michha (False)
Q.8. It is in the evidence of P.w.11 (Sarata Kumar Samal) that 3 days
prior to his seeing the dead body of deceased he had seen the deceased
Parsuram Patri in your house Sarata and Tilotama. What have you got
to say?
Ans: Michha (False)
Q.9. It transpires from the evidence of prosecution witnesses that on
arrival of prosecution witnesses they found the scooter of the deceased
was parked in front of your house Prabhakara and on their arrival in
the Baithakurani temple they found somke was coming from the
thatched house of you accused Sarata and Tilotama and through the
broken mud wall they saw the dead body of the deceased which was
burnt from neck to penis and on such P.w.1 lodged and FIR (Ext-1)
whereby investigation was taken up by P.w.27 ( Satyabrata Lenka) and
services of Scientific Team of DFSL was utilized. What have you got to
say?
Ans: Michha (False)
Q.10. It is in the evidence of prosecution witnesses that when they
arrived near the temple they found the burnt dead body of the deceased
in your thatched house and they found mark of bleeding injuries on the
head of deceased. What have you got to say?
Ans: Michha (False)
Q.11. It is in the evidence of prosecution witnesses along with S.O.,
Amanulla Khan (p.w.22) and I.O. (p.w.27) that they visited the spot,
conducted polygraph test, utilized dog squad, took photograph of the
deceased and scene of occurrence, the I.O. conducted inquest over the
dead body vide Ext-2, seized the scooter of the deceased, a blood
stained crowbar and lungi, recovered from the temple of Bai
Thakurani seized vide Ext-5, wooden bamboo stick, Durga Ghee bottle
etc. found near the dead body seized vide Ext-6 and blood stained
earth, cigarette packet, plastic melted bottle, printed saree, mobile
cover stained with blood, burnt bone and ashes seized vide Ext-8, you
blood sample and nail clippings seized vide Ext-9. What have you got
to say?
Ans: Michha (False)
Q.12. It appears from the evidence of I.O., witness p.w.20 that the
sample blood of the deceased were collected by the doctor and the
blood stained red napkin was seized vide Ext-10, and the dead body
was sent for P.M. examination to S.D.M.O., Athgarh vide Ext-13 and
prayer of I.O. vide Ext-12 and requisition of SDMO, Athgarh to FMT
vide Ext-14 to conduct P.M. examination over the dead body and the
P.M. was conducted by P.w.21 (Dr. Amarendra Naik) and another
doctor and vide P.M. report Ext-11 he opined that the death of the
deceased was homicidal due to assault and that the exhibits M.O.-I to
IX were dispatched SFSL for chemical examination vide Ext-28. What
have you got to say?
Ans: Michha (False)
Q.13. It is in the evidence of Dr. Batakrushan Mahala (p.w.23) that on
police requisition he examined you (Tilotama) and found burn injury
on you and proved your injury report marked as Ext-18. What have
you got to say?
Ans: Michha (False)
Q.14. It is in the evidence of the I.O. that the spot was demarcated by
P.w.26 (Amulya Kumar Das) Amin of Athgarh and P.w.26 proved the
map, report and compliance report. What have you got to say?
Ans: Michha (False)
Q.15. It is in the evidence of P.w.8 and others that you accused
(Pravakara) had been to the house of deceased and had brought money
for construction of temple of deity and the deceased was parking his
scooter in front of your house and on your production the I.O. seized
the book of Bai Thakurani Ext-23 vide Ext-22. What have you got to
say?
Ans: Michha (False)
Q.16. It is in the evidence of prosecution witnesses that the exhibits
were dispatched to SFSL vide Ext-28 for chemical examination and the
C.E. report Ext-16 and serologist report Ext-17 reveals that blood of
human origin of grouping „A‟ was found on mobile phone cover, saree,
lungi of deceased, hair of deceased, sample of blood of deceased and
napkin of deceased and the S.O. (p.w.22) visited the spot took
photographs vide Ext-3 to 3/8 and prepared his spot report vide Ext-
15. What have you got to say?
Ans: Michha (False)
Q.17. It is in the evidence of witnesses that you accused Sarata and
Tilotama by encroaching upon a Govt. land had constructed Bai
Thakurani Temple and thatched house. What have you got to say?
Ans: Q.18. It is in the evidence of prosecution witnesses that you
accused Sarata, Tilotama and your son Sudhakara Pani by assaulting
the deceased in the temple of Bai Thakurani in between the night of
16/17-07-10 murdered him and after murdering him shifted his dead
body to your thatched house and burnt his dead body by pouring ghee
and other oil. What have you got to say?
Ans: Michha (False)
Q.19. You have heard the evidence of P.w.s. adduced against you.
What you have to say more in this case?
Ans: Michha Makadama hoichhi. (False case has been made).
Q.20. Do you want to adduce any evidence in your defence?
Ans: Haan (Yes)"
13. We have reproduced the questions put by the learned trial judge
verbatim which contain in detail the circumstantial evidence which had
emerged against the appellants in support of the charge. We, however,
find that chain of circumstances is not at all complete and the gaps are
patent.
14. It further transpires from the evidence of the prosecution
witnesses that the said thatched house was constructed on a
Government land. There is no evidence to establish fully that there was
any transaction between the appellants and the deceased concerning
construction of the temple or the thatched house which is based on
vague evidence of prosecution's witnesses. If the evidence of PW-1 is
treated to be correct, the deceased himself had gone to stay in the said
thatched house in the night. Out of 27 witnesses, PWs 3, 5, 7, 10, 12,
13, 14, 15, 16, 17, 18, 19, 20, 24 and 25 are seizure and inquest
witnesses. Their evidences do not support the charge against the
appellants of having killed the deceased.
15. For the aforesaid reasons, in our opinion, the conviction of these
appellants based on circumstantial evidence of prosecution witness
No.1, 4 and 8 for the offence of committing murder cannot be
sustained.
16. Evidently, there is no eye witness to the occurrence and the
prosecution sought to establish the charge on circumstantial evidence.
In a case of circumstantial evidence, the Court is required to scrutinize
the evidence and deal with each circumstance and thereafter find the
chain of the establish circumstances being complete. Only if the
answer is in affirmative, a verdict of guilt can be recorded. It is also
trite that if there is a snap in the chain, the accused is entitled to the
benefit of doubt.
17. We have purposefully noted hereinabove the circumstances
which were explained to the appellants by the trial Court, which
according to the trial Court, were pointing towards the guilt of the
appellants. It can be easily inferred from the questions so put to the
accused persons that chain of circumstances was not at all complete. It
is based on the evidence of prosecution witnesses to the effect that the
deceased had left his house telling the informant that he was going to
the house of the appellants and on the next day, the dead body of the
deceased was found in the thatched house lead to a conclusion that the
appellants had killed the deceased. The evidence led at the trial by the
prosecution can at the maximum said to be raising suspicion against
the appellants but in no case the same can be said to be proving all the
circumstances pointing towards the guilt of the appellants as the sole
hypothesis.
18. In our considered view, it will not be safe for us to uphold the
conviction of the appellants based on the nature of circumstantial
evidence adduced at the trial. The appellants deserve to be given
benefit of doubt.
19. Accordingly the appeal is allowed. The judgment and order
dated 28.02.2014 passed by the learned Additional Sessions Judge
Athgarh, Dist. Cuttack in Sessions Trial No.73 of 2012 is set aside. The
appellants stand acquitted of the charge of offence punishable under
Sections 302 and 201 read with Section 34 of the IPC by giving them
benefit of doubt.
20. The appellants are in custody. Let them be set free forthwith.
(Chakradhari Sharan Singh)
Chief Justice
Savitri Ratho, J. I agree.
(Savitri Ratho)
Judge
SK Jena/Secy.
Location: HigH Court of Orissa, Cuttack.
