K.B. Panda, J.
1. This is an appeal filed by the State against an order of acquittal passed by the Sessions Judge, Sambalpur in Sessions Case No. 1 (S) of 1974 on 29-8-1974. wherein the respondent was facing trial under Section 302, Indian Penal Code for having intentionally caused the death of his wife Subarnamanjari Dei on 22-8-1973 at his residence in village Rajpur by firing at her from his gun M. O. 1.
2. The prosecution case briefly is thus: The respondent is the erstwhile Zamindar of Rajpur, District Sambalpur. He was given to excessive drinking. By the time of occurrence, he had crossed 40 and both the respondent and the deceased had at least a married daughter aged about 27 (P.W. 10). Yet due to this evil habit of the husband, the couple had not a happy time.
On 22-8-1973 at about noon, a gunshot report was heard from the residence of the accused. Soon floated a rumour that the wife of the accused had been shot at. Hearing this P.W. 4, a neighbour rushed to a doctor P.W. 1 who immediately came on a motor cycle. He found the injured already dead and the respondent sitting outside the room on the verandah with his hands tied with a napkin. P.W. 1 reported the matter at Braja-rajnegar P. S. at 3-30 p.m. which has been treated as F.I.R. (Ex. 1) in this case. P.W. 12 took up investigation, found a D.B.B.L. gun and a rifle in the room near the head of the deceased. The gun (M. O. I) on examination revealed to have been recently used. On post-mortem certain pellets were recovered from the dead body which were sent to the State Forensic Science Laboratory who opined that they had been released from the empty cartridge (M. O. II) fired from M. O. I. Finally charge-sheet was submitted against the respondent with the result as aforesaid.
3. The plea of the respondent was that he was innocent; that he had not the bad habit of drinking; that the gun M. O. I belongs to him; that he was not present at home on the date of occurrence; and that his wife committed suicide.
4. There are 12 witnesses for the prosecution and none for the defence. Admittedly there are no eye-witnesses to the occurrence. The inmates of the house of the accused such as P.W. 5-the farm servant; P.W. 7-the maid servant; P.W. 8-the maid servant's son, P.W. 9-the cook; and P.W. 10-the daughter of the accused have been declared hostile by the prosecution. The other material witnesses ,are P.W. 1-the doctor who immediately appeared at the scene on getting information from P.W. 4, found the injured dead and the accused sitting in front of the verandah with hands tied and talking incoherently; P.W. 2-the doctor who held the post-mortem examination; P.W. 3-the Chemical Examiner, State Forensic Science Laboratory at Rasulgarh to whom the gun and the empty cartridge together with the pellets found in the body of the deceased were sent for examination; and P.W. 4-a close neighbour who on hearing the gun report and the rumour that the deceased-who was popularly known as Zamindariani, had been shot at rushed to P.W. 1 for medical aid. P.Ws. 11 and 12 are the two Investigating Officers. The former submitted the charge-sheet on 21-11-1973 and it is the latter who recorded the F.I.R. as given by P.W. 1 (Ext. 1) at 3-30 p.m on 22-8-1973.
5. The learned lower Court on an assessment of the evidence held that the death of the injured was due to gun-shot with M. O. I through its right side barrel. From the post-mortem and Chemical Examiner's reports, he further held that the pellets recovered were fired from the empty cartridge (M. O. II) with the gun M. O. I. He negatived the defence theory of suicide and held it to be a case of homicide. Albeit he acquitted the accused giving him the benefit of doubt with the following observations:
The next point for determination is whether the prosecution has clearly established that it was the accused who had fired the fatal shot killing the deceased. The prosecution relies on the following circumstances:
(i) that the accused is the owner of the gun, M. O. I;
(ii) that the deceased and the gun, M. O. I, were found in one of his rooms;
(iii) that M. O. I has been found to have been recently fired;
(iv) that the empty cartridge, M. O. II was used through M. O. I and it appeared to have been freshly fired;
(v) that the gun, M. 0. I is expected to have been kept in safe custody by the accused himself and therefore no one else could have access to it;
(vi) that it was not likely that a third person could have come inside the house in broad day light at about 12 noon and fired the gun; and
(vii) that the accused was found soon after the occurrence outside the room with his hands tied with a napkin and he was talking in an incoherent manner.
Before considering these circumstances it must be borne in mind that in this case motive has not been proved. There is no evidence or material which could throw any light as to why the accused would kill his wife That the accused is the owner of the gun, M. O. I, has been clearly established. This is also admitted by him. M. O. I and the deceased were no doubt found in one of the rooms of the accused, but this circumstance cannot by itself incriminate the accused, Even if M. O. I was recently fired with M, O. II and M. Os. I and II were found near the dead body, these facts do not lead to the conclusion that the accused had fired the fatal shot. Similarly the fact that when P.W. 1 visited the accused's house he had found the accused sitting outside the room with his hands tied and talking in an incoherent manner does not necessarily lead to the conclusion that the accused was the perpetrator of the crime. The circumstances listed above no doubt raise a lot of suspicion against the accused, but it is well known that suspicion is no substitute for proof. On careful consideration, I find that the circumstances relied upon by the prosecution either by themselves or when taken together do not conclusively establish that it was the accused who had fired the fatal shot and killed his wife. The prosecution has failed to bring home the charge under Section. 302, I.P.C. against the accused.
6. It was contended on behalf of the State that in the instant case, all the links in the chain of circumstances being complete, there was no scope for giving the benefit of doubt to the accused. In answer it was contended on behalf of the respondent that the bedroom being approachable from outside, though of course after negotiating three other rooms, the chances of any outsider having committed the crime cannot be eliminated. The learned Counsel for the respondent fairly and candidly conceded that it is not a case of suicide and that the death was due to gun-shot with the gun M. O. I and the empty cartridge M. O. II. However, he strongly urged that the prosecution is guilty of suppression inasmuch as it did not examine one Rabi who is alleged to have tied the hands of the accused in a napkin and this according to him is very significant; obviously the insinuation being that the accused had been somehow kept under control and thereafter some unknown assailant committed the crime.
7. In the background of the above contentions, it is unnecessary to go into a detailed discussion as to the manner of death or the nature of weapon used for the purpose. It can be safely presumed that the deceased met her end at the alleged time and place from a gun-shot fired from M. O. I with the cartridge M, O. II. Suffice it to say that the doctor who held the post-mortem found one circular wound 1 1/4' in diametre situated in the right flank below the rib margin of right side 6' from the spine and 11' from the shoulder in the mid-axillary line. The surrounding skin was blackened and scorched. A small lacerated portion of the liver tissue was protruding. The wound was 6' deep and its direction was horizontal to the foot. Besides these, there was an ecchymosis 2 1/2'X 1' 1/2' behind the elbow joint of the right arm. On dissection the material things that he found within the wound were six pieces of round cardboards and the cover and eight pellets from the liver tissue, which were sent to the Investigating Officer. These were examined by P.W. 3, the Ballistic Expert, according to whom, the gun was fired from an approximate substance of 3 ft. to 4 ft. from the victim, and that the angle of firing was approximately little over right angles to the surface of the body. The ecchymoas was explained to be due to fall after receipt of the gunshot.
8. P W. 1 who immediately appeared at the scene on information from P.W. 4 found the accused sitting outside the room on the verandah with hands tied with napkin and talking incoherently.
He found the injured dead and reported the matter to P.W. 12 at 3-30 p.m. under Ext. 1 which bespeaks as though the culprit was the respondent. The same day P.W. 1 examined the accused at 9-15 pm. under police requisition. He noticed that accused's mouth was smelling of liquor but he was capable of looking after himself (Ex. 2). In his cross-examination he has stated that when he found the accused at noon he was incoherent in that he was not weeping but shouting. From his evidence it is clear that the plea of the respondent that he is not addicted to wine is false. There is no reason why the doctor, who, on a verbal report from a stranger rushed to the scene on a motor cycle would falsely depose so against the respondent,
9. P.W. 3 is the Ballistic expert and his report Ext. 6 shows that the gun (M. O. I) was in good working order and that the residue from the right barrel indicated that M. O. II (the empty cartridge) had been fired from that barrel of the gun. To certain suggestions indicating a case of suicide he has in his cross-examination negatived the theory when he stated that in view of the situation and the angle of the injury, it is not possible that the injured could have shot herself to death. He further stated in cross-examination thus:
A person with longer arms than myself may be able to shot the gun (M. O. I) at himself
XX XX XXIf the gun M. O. I is firmly placed in position and then the trigger pressed by manipulation with a stick like article, it might be possible to shoot oneself.' But such a contingency can be safely ruled out in view of the positive evidence in the case that the gun had been placed In a Khatuli (small charpoi) i.e. in its original position along with the rifle and the barrel was not towards the direction of deceased. Further the cartridge M. O. II after firing had been taken out from the magazine and placed on the table nearby. Such a situation is only possible when the assailant after firing the shot had enough time first to release the cartridge and then place the gun and the empty cartridge in their respective places along with such other articles of the house as was found by the Investigating Officer.
10. P.W. 4 is a close neighbour who in hearing the gun report and the rumour that the Zamindariani had been shot at had run to fetch P.W. 1. P.Ws. 5, 7, 8 and 9 who are servant and maid servants attached to the accused, though had deposed about the dying declaration and had implicated the accused did not do so in Court and so were declared hostile. P.W. 10 is none but the daughter of the appellant and the deceased aged about 27. She had been given in marriage about 11 years back. Her statement was that While in the latrine she heard a gun report and coming to the bed room of the mother found her dead and none present by her side. She was also declared hostile and confronted with her statements before the Investigating Officer.
The statement of the Investigating Officer so far as material is thus:
I found that double-barrel gun and a 405 rifle had been placed on a Khatali 3 1/2 feet away from the head of the deceased. M. O. I is that gun and M. O. IV is that rifle. The muzzles of both the guns were pointing towards the east. Six 12-foore empty cartridge cases and gun cleaning equipment had been placed on the Khatali. I also found that two 12-bore empty cartridges had been placed on a table over the Khatali and one of these cartridge cases smelt of gun powder indicating recent firing. M. O. II is that cartridge case which smelt of gun powder. There were two other 12-bore live cartridges lying on the table. The overshot wad, M. O. III was lying to the side of the dead body in line with the gun shot wound on the dead body.
XX XX XXI seized the gun licence, Ext. 10 on production by the accused and some other live cartridges which were inside a lock box, vide seizure list Ext. 11,
XX XX XXAt my bidding the accused had himself opened the lock of the box.
11. From the above evidence, and the accompanying circumstances, there is no gainsaying the fact that the deceased died of a gun shot injury that was fired from M. O. I belonging to the accused. Further it was M. O. II, the empty cartridge that had been used for the purpose. The learned lower Court has indicated the incriminating circumstances tending towards involving the accused in the crime, the sole point now for consideration is if the finding of the Court below that the accused is entitled to the benefit of doubt is proper so as not to be interfered with in appeal.
We are very much conscious of the limitations of this Court in cases of appeal against acquittal. At one time, there was some controversy over the issue but it has been set at rest in the case of Sanwat Singh v. State of Rajasthan : 1961CriLJ766 . Further the law on circumstantial evidence is also well settled. Recently in the case of Chandmal v. State of Rajasthan reported in 1976 Cri LR (SC) 7 : 1976 Cri LJ 679, it is laid down that--
When a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively should form a chain so completed that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt.
12. In the instant case, keeping in view the law, we are unable to see how the chain of circumstances is not complete. It was a broad-day-light murder within the house and not committed secretly such as by stabbing. But by a gun shot which by its very nature would attract the attention of everybody. There can be only three possibilities in this case, namely, an outsider having any grudge against the deceased might have come in and done the act; or any other inmate of the house; or the accused himself. The first possibility can be eliminated outright for any such assailant could not possibly have come into the house unnoticed during day time right up to the bed room. Again, in that case it has to be further assumed that the assailant had come with the off-chance of committing the crime not with any weapon he was equipped with but by utilising the gun of the owner of the house, as if the same would be readily available to him for use. Besides, after committing the crime, he mast have ample time to take out the used cartridge and place the gun and the used cartridge at their proper places and then vanish unnoticed by anybody. To visualise such a situation would not, in our opinion, amount to entertaining a reasonable doubt but anticipate a miracle, a marvel which might appropriately belong to the domain of fiction or magic, which however does not recognise.
The second theory that any other inmate of the house could have done it can also be similarly ruled out. The evidence is that the murder was in the bed room and so in all probability the mistress of the house - the deceased would resent anybody getting into it and un-authorizedly handling the gun of her husband. Besides, getting into the room loading the gun and aiming at her would take some time however short. Admittedly the was then not asleep and therefore would immediately raise an alarm and thus the attempts of the assailant-may he be an outsider or an inmate of the house-would be frustrated. The circumstances are that the deceased did not anticipate any such act for which she did not raise any alarm, disarmed as she was of all suspicion. Such a situation is only possible if the right person, like her husband would be handling the gun. Thus the second theory of any other inmate committing the crime can also be ruled out.
Now remains the question of the appellant. From the evidence of the Investigating Officer and the daughter, it is clear that the rifle and the gun were at their respective places on the Khatali about 4 ft. away. The learned lower Court has rightly discarded the theory of suicide and the learned Advocate for the respondent also was discreet enough not to press it. A circumstance, which can hardly be ignored is the rumour that soon gained currency to implicating the appellant in the crime and none else. Hereby we need not be misunderstood to be utilising the statements of the inmates of the house before the Police during investigation, but the first reaction of all people who are supposed to have knowledge of the incident. They pointed their accusing finger at the head of the family which is very significant, for, if otherwise would have been the case, such a conduct on their part was very unnatural. For the inmates to turn hostile is quite understandable. Thus we find no circumstance which is compatible with the innocence of the accused. The entire chain of circumstances only indicate towards the respondent and respondent alone as the perpetrator of the crime.
13. Benefit of doubt is no doubt a salutary principle of criminal law so that no innocent person is punished. But that doubt must be a reasonable one calculated to further justice and not to frustrate it. This Court in the case of State v. Sarangadhar Bhoi (1972) 38 Cut LT 734 observed that-
It Is the royal road for those who seek to dispense with even-handed justice with boldness and courage, but a cloak to shirkers who seek the path of least resistance. 'Benefit of doubt' has nowhere been defined; nor is it capable of an accurate scientific definition. All sorts of doubts fanciful, strange and baseless are hardly reasonable doubts, on the basis of which any benefit might flow or Courts will take into consideration. Doubts which are real, genuine, well founded which a normal man with normal intelligence in a given circumstance would naturally harbour, are doubts that come within the fold of 'reasonable doubt' entitling one to the benefit thereof. Such doubts are normal, in a normal man which should never be equated with the abnormal fear of an imbecile, indecisive or a timid fellow.
Aptly an eminent Judge has said thus:
It is not a doubt of a vacillating mind that has no normal courage to decide but shelters itself in a vain and idle scepticism.
So judged we are unable to visualise the situation where there is any scope for any doubt in this case that the respondent was not responsible for the crime. Apart from these circumstances, what reinforces the same is his false plea that he does not drink, that he was absent from home on the relevant day and that his wife committed suicide. The positive evidence in the case is that he was found drunk and was very much in the house with his hands tied by a napkin as P.W. 1 reached for treating the injured. The natural reaction of a husband when the wife had been shot at or committed suicide would have been entirely different if he were not the author of the crime. Thus, from the circumstantial evidence reinforced by the conduct of the accused, we hold that it is the respondent and respondent alone who was the author of the crime and therefore the order of his acquittal is vulnerable. Accordingly we set aside the order of acquittal, allow the appeal and in view of the long lapse of time and his drunkenness, hold that a sentence of rigorous imprisonment for life would meet the ends of justice which we do hereby inflict. The respondent be re-arrested to suffer the sentence.
S.K. Ray, J.
14. I agree.