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Mantu Alias Sunil Kumar Bhuyan Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 107 of 1980
Judge
Reported in1985(I)OLR4
ActsEvidence Act, 1872 - Sections 3 and 60
AppellantMantu Alias Sunil Kumar Bhuyan
RespondentState
Appellant AdvocateP.K. Dhal and S.C. Sahoo
Respondent AdvocateD.P. Sahoo, Standing Counsel
DispositionAppeal allowed
Cases ReferredMahadev Ghosh v. State) The Supreme Court
Excerpt:
.....ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - viii} containing currency notes of different denominations and coins suspected to have been stained with blood and saliva of eggs, a shirt suspected to have stains of blood and a hand-bag containing stains looking like blood-stains. the learned standing counsel has supported the order of conviction as well-founded on the basis of the circumstantial evidence on the record. 8. the principles governing the appreciation of circumstantial evidence are well settled......the said cabin. about one year back as usual i took my food and slept on an wooden box kept in the cabin. gunadhar is usually addressed by me as dadi. when i was asleep 1 heard the hullah raised by my dadi 'chora marila, chora maril i woke up and found that miscreant was stabbing gunadhar with a knife. i then raised hullah by saying 'chora dadiku maripakauchhi'. then the miscreant rushed towards me and stabbed me on the left side of my forehead with a knife.' he also gave me another stab injury on the x x x back side of my head which struck my head little behind my right ear. after giving me those stab wounds x x x that miscreant left the cabin. i then became senseless and kept lying on the wooden box. next morning the police officer came and brought me out from the cabin. when i came to.....
Judgment:

B.K. Behera, J.

1. The appellant assails the order convicting him under Section 302 of the Indian Penal Code (for short, 'the Code') for having committed the murder of Gunadhar Gochhayat (hereinafter described as the 'deceased') by intentionally and knowingly causing his death during the night of the 2nd/3rd January, 1979, in a cabin' near the Taladanda Canal Bridge at Chhatra Bazar in the city of Cuttack and sentencing him to undergo imprisonment for life and also the order of conviction under Section 307 of the Code recorded against him for attempting to commit the muder of Tarapada Jena (P. W. 13) during the same night with a sentence to undergo rigorous imprisonment for a period of ten years concurrently with the sentence passed against him under Section 302 of the Code. The appellant has been acquitted of the charge under Section. 380 of the Code for committing theft of about Rs. 1,200/- which was in the possession of the deceased during the same occurrence.

2. The case of the prosecution was that the appellant, after having made preparation for committing the murder of the deceased by purchasing the knife (M. O. I.) from Bajrang Prasad Choudhury (P. W.14), a dealer in stationery articles and hard-ware at Cuttack, entered into the cabin, where the deceased had been staying and dealing in eggs with Tarapada Jena (P. W. 13) working as his servant, during the night of the 2nd/3rd January, 1979, committed murder by killing the deceased by means of M. O. I. and then attempted to commit the murder of P. W. 13 also by the same weapon which was thrown on the spot and after breaking open a box, removed cash amounting to about Rs. 1,200/- in the possession of the deceased and while leaving the spot, locked the cabin from outside. On the following day, Hadibandhu Mohanty (P. W. 9), who had come to the market at Chhatra Bazar for purchasing fish in the morning, noticed that many people had assembled near the cabin which belonged to Basanta Kumar Roul (P. W. 4), and which was under the occupation of the deceased on rent. It had been locked from outside. A boy was raising a cry inside to give him some water. Through an opening between the planks of the cabin, it could be noticed that the deceased was lying dead and the boy hadsustained severe injuries. P. W. 9 went to the shop of Daitari Roul where Markanda Kalia (P, W.10) informed the police station on telephone. After the police authorities came, the cabin was opened by uprooting the hook and the injured boy (P.W. 13) was brought out. A bicyclehad been placed on the dead body of the deceased which was lying in a pool of' blood. The wooden box inside the cabin had been broken. The report of P. W. 9 was treated as the first information report and investigation followed. The main part of the investigation had been taken up by the Inspector of Police (P.W.24). On getting some clue that the appellant was the author of the crime, P. W. 24 searched the house of the appellant at village Nilveri and recovered and seized a plastic hand-bag (M. O. VIII} containing currency notes of different denominations and coins suspected to have been stained with blood and saliva of eggs, a shirt suspected to have stains of blood and a hand-bag containing stains looking like blood-stains. The appellant was arrested on 6.1.1979 and as he had injuries on his person, he was examined by Dr. Bishnu Charan Das (P. W. 1.), Associate Professor of Forensic Medicine of the S. C. B. Medical College at Cuttack, as per the ' injury certificate (Ext. 2). On chemical and serological test, human blood was detected in the knife seized from .the spot, clothes of the deceased and the coins seized from the house of the appellant. Blood was detected in the full-shirt seized from the house of the appellant and the banian belonging to the appellant, but its origin could not be determined No blood was detected in the currency note or 'in the nail-scrappings of the appellant which had been taken in the course of investigation. A report had been called for from the State Forensic Science Laboratory as to whether the currency notes contained saliva of aggs, but no report had been obtained and brought in the evidence.

3. On the completion of investigation, a charge-sheet was placed and the appellant was prosecuted being charged under Sections 302, 307 and 380 of the Code. The prosecution had examined twenty-four witnesses to bring home the charges to the appellant whose plea was one of denial and false implication. The case of the appellant was that he had no enmity with the deceased and he had never been to the cabin during the night of occurrence as alleged. According to him, he was At Cuttack in the night of the 2nd January, 1979 and proceeded to Ersama on the 3rd January, 1979 and while getting down from the bus at the bus stand, he sustained injuries and had been treated by the doctor at Ersama. The police authorities arrested him on 4th January, 1979 and ill-treated and manhandled him for which he had sustained a number of injuries.

4. It is not disputed at the Bar that the deceased had died a homicidal death and P. W. 13 had sustained injuries and the injuries on the deceased and P. W. 13 could be caused by M. O. I.

5. The prosecution had not established any motive for the commission of the offence of murder by the appellant. No doubt, motive is sometimes known only to the perpetrator of the crime and it is not obligatory on the part of the prosecution to provemotive to bring home a charges But the absence of the proof of motive would certainly put the Court on its guard to examine the prosecution evidence with great care before its acceptance. (See AIR 1 955 S. C. 807 : Atley v State of Uttar Pradesh).

6. The main evidence in the case was that of P. W. 13 who had been examined as a witness to the occurrence. He had deposed thus :

'...I was helping late Gunadhar Gochhayat in the egg trade, when he was carrying on his business at Chhatrabazar in a wooden cabin near the canal bridge. I served him for a period of 5 or 6 months prior to his death. Both myself and my master Gunadhar used to sleep in the said wooden cabin after the closure of the day's business. We were cooking our food in the said cabin. About one year back as usual I took my food and slept on an wooden box kept in the cabin. Gunadhar is usually addressed by me as Dadi. When I was asleep 1 heard the hullah raised by my Dadi 'Chora marila, Chora maril I woke up and found that miscreant was stabbing Gunadhar with a knife. I then raised hullah by saying 'Chora dadiku maripakauchhi'. Then the miscreant rushed towards me and stabbed me on the left side of my forehead with a knife.' He also gave me another stab injury on the x x x back side of my head which struck my head little behind my right ear. After giving me those stab wounds x x x that miscreant left the cabin. I then became senseless and kept lying on the wooden box. Next morning the police officer came and brought me out from the cabin. When I came to senses. I requested them to give me water. I then drank water. Then police people took me to the hospital at Cuttack where I was treated for my injuries. I was hospitalised for a period of 9 days.'

As recorded by the trial Court (in paragraph 3 of the evidence of this witness), the appellant was brought very close to this witness and he was asked to identify the culprit, but the witness, it is important to keep in mind, could not recognise the appellant. Thus P. W. 13 had not identified the appellant to be the assailant. He was put leading questions by the prosecution under Section 154 of the Evidence Act and confronted with some incriminating statements said to have been made by him against the appellant in the course of investigation which, however, could not be treated as substantive evidence. There was thus no direct evidence of any witness to the occurrence connecting the appellant with the commission of the crime. The case solely depended on some items of circumstantial evidence.

7. Mr. Dhal, appearing on behalf of the appellant, has taken us through the relevant evidence and has submitted that the trial Court went wrong in convicting the appellant underSections 302 and 307 of the Code. The learned standing counsel has supported the order of conviction as well-founded on the basis of the circumstantial evidence on the record.

8. The principles governing the appreciation of circumstantial evidence are well settled. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. The circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. The circumstances should be of a conclusive nature and tendency and should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so for complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.

9. As would appear from the finding recorded by the trial Court, there was paucity of evidence to show that the appellant had purchased M. O. I from P. W. 14. The learned Sessions Judge did not accept the evidence of P. W. 20 that he had been informed by P. W. 13 that the appellant was the author of the crime. Relying on the evidence of P. W. 23, the trial Court held that his evidence would establish beyond all reasonable controversy that the appellant had been to the cabin of the deceased in the night of the 2nd/3rd January, 1979 and that he was not accommodated there. This finding cannot be sustained. The evidence of P. W. 23 would give an indication that he had also been suspected by the investigating agency in connection with this case. P. W. 23 had deposed thus :

'......While I was at Ersama Bazar, I met Abanti Khatua and he informed me that accused Mantu was telling that Gunadhar has been murdered at night. He also told me that Mantu told him that last night he had been to the cabin of Gunadhar to stay for the night bat Gunadhar did not accommodate him.'

10. The learned Sessions Judge held that in the absence of any other data, the explanation of the appellant that the coins contained human blood as he had sustained injuries while getting down from the bus could not be ruled out. as impossible and therefore, possession of these articles with stains of blood could not be a clinching circumstance against the appellant to connect him with the crimes. Having accepted this part of the story of the defence, the learned Sessions Judge was not correct in observing in paragraph 16 of the judgment that the fact that the appellant had sustained injuries could be in the course of his struggle between him and the victim and not in the course of a fall from the vehicle.

11. According to the learned Sessions Judge, the presence of injuries on the person of the appellant would lead to a conclusion that there had been a struggle between the victim and the assailant. As has been submitted on behalf of the appellant, there was no evidence indicating that the appellant had sustained injuries during the occurrence which took place during the night of the 2nd/3rd January, 1979. The appellant, as can be seen from the evidence of P. W. 1, had sustained twenty injuries on his person. He had been examined by P. W. 1 on 6.1. 1979. It would, however, be noticed from the evidence of Dr. Rajkishore Baral (P. W. 6), who had been functioning as the Government Medical Officer at Ersama, that on 3.1.1979 he had examined the appellant and noticed cut injuries on the nose and ear on the left side. As his evidence would show, the appellant had appeared at the Primary Health Centre at Ersama, on 3.1.1979 and he (P. W. 6) had made an entry in the Out-patient Register maintained at the Primary Health Centreregarding the injuries sustained by the appellant. It would thus be clear from the evidence of P. W. 6 that the appellant had sustained but two cut injuries on the nose and ear on the left, side as noticed by P.W. 6 on 3.1.1979. The appellant's case was that he had been assaulted at the hands of the police authorities after he was taken into custody on 4.1.1979. The evidence of P. W. 24 was that the appellant had been arrested on 6.1.1979. There was no evidence to indicate that the police authorities had manhandled and assaulted the appellant. The facts however, remains that while the appellant had sustained but two injuries on his person as noticed by P. W. 6 on 3.1.1979, he had a number of injuries on his person as noticed by P. W. l on 6.1.1979. It is not known as to how, the appellant had a number of injuries on his person on 6.1.1979. But inview of what has been stated above, it cannot be said that the injuries on the person of the deceased, as noticed by P. W. 1, had been caused during the occurrence in the course of the struggle between the appellantand the victim.

12. Another item of circumstantial evidence, on which reliance has been placed by the trial Court is that while conducting the autopsy, P.W. 1 had found some hairs sticking to the hand of the deceased which had been) collected by him and kept in two packets and the samedoctor had also collected hairs from the head of the appellant when he examined him on 6.1.1979, and the report of the Chemical Examiner, as per Ext: 12 was that on microscopic examination, it was noticed that the hairs sticking to the hand of the deceased and collected from the head of the appellant might be of similar origin. Thus the report of the Chemical Examiner was not conclusive. The learned Sessions Judge, however, wrongly found that the hairs had similar origin. The learned counsel for the appellant has invited our attention toModi's Medical Jurisprudence and Toxicology, Twentieth Edition, page 107, wherein it has been stated that by laboratory examination of hair, it would be possible to say that it cannot belong to a particular individual, but it cannot be opined whether it definitely belongs to him.

13. The next and the last circumstance, on which reliance had been placed by the trial Court was that the appellant and the deceased had been last seen together during the night of the 2nd/3rd January, 1979 as deposed to by P. W. 19. This witness had stated in his evidence :

'......I came to the shop of Gunadhar on the day when he was murdered. I had been to his cabin at about 12 midnight for purchasing eggs. I then saw the accused in his shop. Both Gunadhar and the accused served me boiled eggs. Gunadhar had a servant boy who was also there in the cabin.'

It could not be said from this evidence that besides the appellant, none else had come to the shop of the deceased during the night of occurrence. According to this witness, he had seen the appellant at about 12 midnight. It had not been established as to when actually the occurrence had taken place. There was no evidence that no other person had visited the shop of the deceased after midnight. An important feature of which due notice had not been taken by the trial Court was that even P. W. 13 who had been serving in the shop of the deceased, had not testified that P. W. 19 had come to the shop of the deceased during that night. A highly suspicious feature in the evidence of P. W. 19 is that on the day following the day of murder of the deceased, he had been informed about the murder and he had been going to the Malgodown usually on Tuesday and Friday, but there was no evidence that he had informed any one about what he had seen during the night in the cabin of the deceased. As can be seen from the evidence of P. W. 24, this witness had been examined in the course of investigation at late as on 25.2.1979. The belated examination of such a material witness in the course of investigation without any explanation would, in the circumstances of the case, seriously affect his evidence and make it unworthy of acceptance.

14. Even assuming, however, that the evidence of P. W.19 was true and that he had seen the appellant and the deceased at about midnight and even further assuming that the appellant and the deceased was last seen together before the deceased was done to death, in the absence of other evidence, this could not point to the guilt of the appellant. {See AIR 1979 S. C. 1620 : 1979 Cr. L. J. 1217 : Lakhanpal v. State of Madhya Pradesh and 1983 Cr. L. J, 1854 : Mahadev Ghosh v. State) The Supreme Court has held that the mere fact that the accused was last seen with the deceased does not lead to the irresistible inference that he committed the murder.

15. There was no other evidence to connect the appellant with the commission of the crime.

16. While in all probability, the assailant of the deceased was also the assailant of P. W. 13, the items of circumstantial evidence on which reliance had been placed by the trial Court, as discussed above, were not worthy of acceptance and were not incompatible with the innocence of the appellant. It may seem unfortunate that a cold-blooded murder is going unpunished, but in the absence of legal proof pointing the guilt of the appellant, the order of conviction cannot be sustained.

17. We would allow the appeal and set aside the order of conviction and sentence passed against the appellant in respect of the charge under Section 302 and 307 of the Indian Penal Code. The appellant be set at liberty forthwith.

G.B. Pattnaik, J.

18. I agree.


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