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Kuna @ Sanjaya Behera Vs. State of Odisha

[Criminal Appeal No. 677 of 2010]


1. The appellant, successively convicted by both the courts below along with one Pravati Behera under Section 302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred to as "IPC/Code") along with Section 34 of the Code is in appeal seeking remedial intervention.

2. Whereas the Trial Court by the judgment and order dated 26.1.2001, as stated hereinbefore, convicted the appellant and the co-accused Pravati Behera, the High Court by the verdict impugned, though has affirmed the conviction of both, had left the co-accused at liberty to move an application for premature release from the jail and for appropriate orders under Sections 433 and 433-A of the Code of Criminal Procedure, 1973 (for short, hereinafter to be referred to as "Cr.P.C."). Noticeably, the appellant and co-accused had been charged along with Section 302 IPC for the offence under Section 203 as well but were acquitted thereof by the Trial Court. Though an appeal was preferred by the State against such acquittal, the High Court has affirmed their exoneration as well.

3. We have heard Mr. Krishnan Venugopal, learned senior counsel for the appellant and Mr. Shibashish Misra for the respondent.

4. The prosecution case unfolds with a written information lodged by Premananda Behra (PW12) with the police on 20.2.2000, whereby the unnatural death of his brother Santosh Behera by hanging from the roof of a shed adjacent to his (deceased) house, was reported. In the course of the investigation, following the registration of said information, Niranjan Behera (PW1) disclosed to Daitari Behera (PW5) that the appellant along with the co-accused Pravati Behera had in the intervening night of 19/20.2.2000 murdered the deceased in his 3 house and thereafter had suspended his dead body from the roof of the nearby shed. PW1 claimed to have witnessed the incident of murder. Following this information, the investigation took a different turn. The appellant and the co-accused were arrested and eventually, charge-sheet was laid against them.

5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan Behera (PW8) also came to the police station and reported that PW1 had disclosed to them as well to have witnessed the appellant and the co-accused committing murder of Santosh Behera (deceased) in his house and thereafter, hanging the dead body from the roof of the nearby shed. The investigating officer in the process of investigation, amongst others caused the inquest of the dead body to be made, prepared a spot map Ex. P-11, effected seizure, amongst others inter alia of a rope and also got the post-mortem of the dead body done before submitting the charge-sheet as mentioned hereinabove. The formal FIR was registered on 26.2.2000 under Sections 302/203 read with Section 34 IPC.

6. At the trial, the accused persons were charged under Sections 302/203/34 IPC. They having denied the allegations, were made to stand trial. The prosecution examined as many as 16 witnesses, and after recording the statements of the accused persons under Section 313 Cr.P.C. and on a consideration of the materials on record, the Trial Court convicted the appellant and co-accused under Section 302 IPC read with Section 34 of the Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 100/-, in default to suffer R.I. for 30 days.

7. In recording the conviction, the Trial Court laid utmost emphasis on the testimony of PW1, who apart from narrating the incident of murder, also deposed about the extra-marital relationship between the accused persons, though they were related as nephew and aunt. Reliance was also placed on the evidence of Musimani Behera (PW3), the mother of the deceased, who, perceived to have hinted at well to this unacceptable liaison. The Trial Court noted the opinion of Dr. Rupabhanu Mishra (PW11), who conducted the post-mortem examination that the cause of death of Santosh Behera was asphyxia as a result of constriction of the neck and not due to hanging by rope. The Trial Court, however discarded the prosecution case of illicit relationship between the accused persons and the motive of murder stemming therefrom. It was however of the view that lack of motive notwithstanding, the testimony of PW1, PW5, PW6 and PW8 taken together proved the charge against the accused persons and, therefore, returned the finding of guilt against them, qua the offences for which they had been charged.

8. Both the appellant and co-accused preferred separate appeals before the High Court and as hereinbefore stated, by the decision assailed, their conviction under Section 302/34 IPC and the sentence awarded thereupon was affirmed. The High Court, in determining so, sustained the prosecution's plea of motive of murder founded on extra-marital relationship between the accused persons and arrived at the conclusion drawing sustenance from the evidence of PW1 as well as PW3, the mother of the deceased, who testified to have rebuked both of them for their deplorable conduct. The High Court, as well believed the version of the incident, as narrated by PW1 and disclosed to PW5, PW6 and PW8 albeit after a lapse of three days. The High 6 Court accepted the explanation of PW1 for the delay in such disclosure that the appellant had threatened him with dire consequences, if he did so.

9. Mr. Krishnan Venugopal, learned senior counsel for the appellant has emphatically urged that as the testimony of PW1, the sole eye witness, as claimed by the prosecution, is wholly unbelievable, the conviction of the appellant is palpably illegal and is liable to set-aside. Apart from contending that the FIR filed after six days of the incident was inexplicably delayed rendering the prosecution case unworthy of any credit, the learned senior counsel maintained that the High Court has grossly erred in accepting that the motive behind the murder was the illicit relationship between the accused persons, necessitating the elimination of the deceased.

The learned senior counsel was particularly critical of the unnatural conduct of PW1, who incomprehensibly remained indifferent and silent though his uncle was murdered in his view and that the incident, according to him, ranged for about an hour. Further, his unexplained silence about the gruesome murder by the accused persons for about three days also rendered him wholly untrustworthy, he urged. Mr. Krishnan argued as well that not only PW1 at the relevant time was admittedly in an intoxicated state, his presence at the place of occurrence was not free from doubt.

The learned senior counsel underlined that it being in the evidence that there were several houses of the close relatives of the deceased and PW1 in the locality, the claim of PW1 to be a silent eye witness to the incident, is wholly unbelievable. The learned senior counsel insisted as well that in absence of any material on record that the area was sufficiently lighted, it was wholly unacceptable that PW1 could see the incident from his house at a distance of 15 cubits. In the attendant facts and circumstances, Mr. Venugopal maintained that the conviction of the appellant on the testimony of a solitary witness, whose version was laden with inconsistencies, absurdities, and improbabilities, is patently illegal and cannot, in any view of the matter, be sustained in law.

He discarded the evidence of PW5, PW6 and PW8, relied upon by the two courts below, on the ground that their testimonies were wholly inconsequential being in the nature of "hearsay", they having derived the knowledge of the incident from PW1, as reported to them by him. Mr. Venugopal has urged that if the version of PW1 is disbelieved, as it ought to be, in view of the inherent incongruities, the other materials on record do not unerringly evince the complicity of the accused persons in the offence and thus, the appellant is liable to be acquitted.

He argued as well that the injuries enumerated in the inquest report and the medical evidence/post-mortem report, also are inconsistent and contradictory in description, thus rendering the prosecution version highly improbable. The learned counsel emphasised that the evidence on record by no means convincingly establish the illicit relationship between the accused persons and that the High Court did fall in error in accepting the same. The following decisions were cited in endorsement of the arguments advanced.

1. Anil Phukhan vs. State of Assam1

2. Ramji Surya Padvi and Another vs. State of Maharashtra2

3 Chuhar Singh vs. State of Haryana3 1 (1993) 3 SCC 282 2 (1983) 3 SCC 629 3 (1976) 1 SCC 879 9

4. State of A.P. vs. Patnam Anandam4

5. Mahamadkhan Nathekhan vs. State of Gujarat5

6. Budha Satya Venkata S. Rao and Others vs. State of A.P.6

7. Niranjan Panja vs. State of West Bengal7

8. Nagraj vs. State represented by Inspector of Police, Salem Town, Tamil Nadu8

10. In refutation, the learned counsel for the respondent-state has asserted that the evidence of the sole eye witness PW1 is coherent, consistent and cogent and is fully complemented by medical evidence and thus the prosecution having been able to prove the charge beyond all reasonable doubt, the conviction and sentence of the appellant and his co-accused does not merit interference.

Having regard to the vivid narration of the incident in minute details, as provided by PW1, the courts below were perfectly justified in relying on his sole testimony, he urged. As the medical evidence, mentioning 4 (2005) 9 SCC 237 5 (2014) 14 SCC 589 6 1994 Supp(3) SCC 639 7 (2010) 6 SCC 525 8 (2015) 4 SCC 739 10 the cause of death, is wholly corroborative of the version of PW1, there is no scope to doubt the culpability of the accused persons, he argued.

The learned counsel dismissed the demur of the defence that the evidence of PW1 was vitiated by contradictions, embellishments and inconsistencies.

According to Mr. Misra, the statement on oath of PW1 is amply supported by that of Kumari Nomita Behera (PW2), the daughter of the deceased and PW12, who, in the next morning, did detect the dead body of the deceased in a hanging posture from the roof of the adjacent shed, as deposed by PW1. As the testimony of PW1 together with that of PW3, the mother of the deceased persuasively prove the illicit relationship between the accused persons, the High Court was justified in accepting the same to be the motive for the offence, in the attendant facts and circumstances of the case, he insisted. The learned counsel for the respondent urged that as PW1 had been threatened with death by the appellant, if he dared to disclose the commission of offence, the delay on the part of the witness (PW1) to confide about the same in PW5, PW6 and PW8 after three days and the filing of the FIR after six days per se, is not fatal for the prosecution. The decision of this Court in Gulam Sarbar vs. State of Bihar9 was cited to reinforce the contention that when ocular evidence is in conformity with the medical evidence, conviction based thereon is legal and valid.

11. To appropriately appreciate the competing assertions, it is expedient to evaluate the evidence having a direct bearing on the offence allegedly committed for the offence involved. PW1, who is the cousin brother of the appellant and incidentally the nephew of the co-accused Pravati Behera, deposed on oath that there was a lingering love affair between the accused persons from before the occurrence and that he had seen them in a compromising position in the house of the deceased, six months' prior to the incident. The witness stated that he informed about this to the mother of the deceased, who rebuked the accused persons.

He stated that in the night of occurrence at 9.30 p.m., he had gone to witness a video show in the village, where the children of Parvati Behra, the co-accused were also present. According to him, in the course of the show, the appellant asked him to accompany him for liquor and though 9 (2014) 3 SCC 401 12 the witness initially resisted, he eventually left the video show with the appellant. He stated further that they then went to the house of Baisakhu Behera, where the appellant purchased liquor and consumed the same and forced the witness as well to drink.

The witness stated that they then proceeded towards their respective homes and when they were nearing their houses, the appellant concealed himself in a lane near the house of the witness. PW1 stated that at that time, he saw the deceased and Pravati Behera coming out of their house to ease themselves. On their way back to the house, Pravati Behera entered first and when the deceased was about to enter, the appellant struck him twice from the back, as a result of which, he (deceased) fell down.

According to the witness, the appellant sat on the chest of the deceased and pressed his neck by his hands and Pravati Behera covered his mouth with her hands, as a result of which the deceased soon became suffocated and died. The witness stated that thereafter the accused persons brought a rope, tied it around the neck of the deceased and suspended the dead body from the roof of the adjacent shed. Thereafter, the appellant locked Pravati Behera in the house from outside and threatened to kill him, if he disclosed the offence to anyone, whereafter the witness returned home. PW1 stated that it was three days thereafter that he narrated the incident to PW5, PW6 and PW8.

12. In cross-examination, the witness in substance stated that his house, that of the deceased, PW12 and other relatives were located nearby and that the courtyard in between his house and that of the deceased measured about 15 cubits . The witness conceded that there were about 150 to 200 houses adjacent to his house, situated at a distance of 20 to 25 cubits. He further stated that at that point of time, he was little intoxicated, and he was then inside his compound. PW1 deposed as well that though the occurrence took place for about an hour, he did not raise any alarm asking for help.

He admitted that on the next day, though about 5000 people had gathered, he did not disclose the incident either to them or to the police. He however sought to explain his conduct by stating that he did not do so as he had been threatened by the appellant but after three days, he gathered courage and informed PW5, PW6 and PW8 of the incident.

13. PW3, the mother of the deceased deposed that she had rebuked the accused persons on several occasions on noticing "secret talks' between them. The testimony of PW5 and PW6 in essence is that on 20.2.2000, PW1 disclosed to them the incident and the fact that he had witnessed the same. PW8 stated that about 5/6 days after the incident, when he asked PW1 about the same, he disclosed to him stating that the appellant and Pravati Behera had committed murder of Santosh Behera. To all these three witnesses, as stated by them, PW1 disclosed in sequence the facts, as narrated by him on oath.

14. Dr. Rupabhanu Mishra (PW11), who performed the post-mortem examination on the dead body of the deceased had apart from mentioning the external injuries by way of abrasions etc. opined that death was due to asphyxia by pressing of neck and was not due to hanging by rope. PW12, as already alluded to hereinabove, stated on oath that on 20.2.2000, he had gone to the house of the deceased to hand over the keys of his Sweet Meat Shop, where the deceased was employed, but was told by his wife from inside the house that he (deceased) had gone out by locking the door from outside.

The witness stated that it was 15 then 5/5.30 a.m. and when he returned with his torch light, he detected the dead body of Santosh Behera hanging from the roof of adjacent shed by a rope. He then requested PW5 to write a report which he thereafter lodged with the police. S.I. Narendra Kumar Sarangi (PW16) is the Investigating Officer, who enumerated the steps taken by him during the investigation and proved amongst others Ex P-11, the spot map.

15. The accused persons in response to the questions, laying the incriminating evidence against them denied the correctness thereof and stood by their plea of innocence.

16. Before recording the final conclusions on the basis of the evidence on record, beneficial it would be to briefly note the legal propositions enunciated in the authorities cited at the Bar.

17. That conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukhan1, Ramji Surya2, Patnam Anandam4 and Gulam Sarbar9 with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a 16 ring of truth and it is cogent, credible, trustworthy or otherwise.

18. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan5

19. With reference to Section 3 of the Evidence Act, which defines "proved", "disproved" and "not proved", this Court in Lokeman Shah and another vs. State of West Bengal10 recalled its observations in M. Narsinga Rao vs. State of A.P., 2001 Crl.L.J. 515 as hereinbelow: "A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him."

20. Prior thereto, in Vijayee Singh and others vs. State of 10 AIR 2001 SC 1760 17 U.P.11, this Court dwelling on the same theme, had recorded the following exposition: "28. It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.

The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.

The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to 11 (1990) 3 SCC 190 18 be disproved when the court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."

21. The quintessence of the enunciation is that the expression "proved", "disproved" and "not proved", lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure "proof", full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved.

22. It is on the touchstone of this legal exposition that the evidence in the case in hand, has to be appreciated. Admittedly, PW1 is the solitary eye witness to the incident. He is related both 19 to the deceased and the accused-appellant. Whereas the deceased is his uncle, the appellant is his cousin brother. He claims to have accompanied the appellant from the video show till the place of occurrence. At the relevant time, he was admittedly intoxicated. The incident, as per the prosecution version, occurred between 1 a.m. to 2 a.m. in the intervening night of 19/20.2.2000 in the house of the deceased which was located about 15 cubits from the compound where the house of PW1 was situated .

The spot map Ex. P-11 prepared by the I.O. (PW16) noticeably does not mention about any source of light in the locality. It does not even indicate as to whether the area was lighted at the time of incident so as to make the viewing of the incident possible by PW1 from the place, where he was located. It is intriguing that though PW1 claimed that the duration of the the incident was about one hour and that the appellant first did assault the deceased from behind twice on which he (deceased) fell down, whereafter he (appellant) sat on his chest and throttled him and that co-accused Pravati Behera covered the mouth of deceased to facilitate his suffocation to death, he did not utter a sound or make a shriek or raise any alarm either to prevent the occurrence or to muster assistance from the inhabitants in the locality.

This is more so as he admitted that there were about 150 to 200 inhabitants, lodging nearby apart from the fact that the houses of his relatives as well of the deceased were almost in the same campus. His plea that he did not disclose the incident to others immediately as he had been threatened by the appellant does not explain or justify in any manner whatsoever his inexplicable silence or indifference during the time of commission of occurrence.

In the overall scenario, the plea of the defence that the evidence of PW1 is highly improbable, absurd and doubtful, cannot be lightly brush aside more particularly in view of the test of essentiality of the degree of certainty, necessary to accept that the facts narrated by this witness as proved. To recall, the incident at the first place had been registered as a case of unnatural death and was after six days of the occurrence converted into one under Sections 302/203/34 IPC against the appellant and the co-accused on the disclosures made by PW1, PW5, PW6 and PW8. Apart from the fact that testimony of PW5, PW6 and PW8 can by no means be construed to be substantive in nature, these witnesses having derived the knowledge from 21 PW1, we are inclined to accept the analysis of the materials on record on the aspect of motive as made by the Trial Court.

23. The testimony of PW1 with regard to the illicit relationship between the accused persons, his revelation to the mother of the deceased that he and the co-accused were seen in a compromising position in their house with the door open and the reprimand of the mother (PW3) for the "secret talks" between them (accused persons) lack in persuasion to conclude that the prosecution had been able to prove such relationship and therefore, the motive for the murder by them.

The medical evidence to the effect that death had occurred by asphyxia as a result of constriction of the neck and not due to hanging by rope, though conforms to the manner of execution of the offence, as narrated by PW1, in view of inherent improbabilities and incongruities in his evidence, we do not consider it safe to base the conviction of the appellant and the co-accused thereon. Dehors testimony of PW1, and the motive as alleged by the prosecution, there is no other tangible and clinching material on record in support of the charge against the appellant and the co-accused. The inference of motive by the High Court drawn from the evidence of PW1 and PW3, in the overall perspective as discussed hereinabove, is apparently flawed.

24. On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant opinion that the evidence of PW1, as a witness of incident of murder, as projected by him is wholly unacceptable being fraught with improbabilities, doubts and oddities inconceivable with normal human conduct or behaviour and, thus cannot be acted upon as the basis of conviction. The testimonies of PW3, PW5, PW6, PW8 and PW11, even if taken on their face value, fall short of the requirement of proof of the charge beyond all reasonable doubt. The appellant and the co-accused are thus entitled to the benefit of doubt in the singular facts and circumstances of the case. The contrary view taken by the courts below is against the weight of the evidence on record and the exposition of law attested by the decisions cited at the Bar and traversed as hereinabove.

25. In the result, the appeal succeeds and is allowed. As a consequence, the appellant is acquitted and is ordered to be set at liberty if not required in connection with any other case.

.......................................J. [N.V. RAMANA]

.......................................J. [AMITAVA ROY]


NOVEMBER 17, 2017


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