Pari@Paria Nayak Vs State

section 302 of the Indian Penal Code (hereafter „I.P.C.‟) on the accusation that he committed murder of his mother Sankhi Nayak (hereafter “the deceased”) in the afternoon on 15.04.2006.

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The learned trial Court vide impugned judgment and order dated 18.07.2008 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (Rupees ten thousand), in default, to undergo further R.I. for six months.

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Prosecution Case :

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P.W.1 Trinath Naik, the maternal uncle of the appellant lodged the F.I.R. before the Inspector-in-Charge of Khurda Police Station on 15.04.2006 stating therein that the deceased was his sister and the appellant was the son of the deceased. The deceased and the appellant were staying in village Guditangi constructing a thatched house in a government land since three years prior to the occurrence. Nine months prior to the occurrence, the appellant got married but within ten days of marriage, his wife left the matrimonial home and went to her father‟s place as he subjected his wife to physical cruelty. Since that day, the appellant became more aggressive and most of the time, he used to quarrel with the deceased and was also

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assaulting her and threatening her with dire consequences. The informant on many a occasion compromised the dispute between the deceased and the appellant. On the previous night of the occurrence, the appellant so also the deceased had gone to watch the opera show which was organized in the village on the eve of Pana Sankrati and returned home. On the day of occurrence, a quarrel ensued between the appellant and the deceased and the appellant assaulted to the deceased. After coming to know about the same, the informant came to the house of the appellant and tried to subside the matter. At about 5.00 p.m., while the informant was proceeding to purchase the vegetables, he found that the cattle were pulling straws from the thatch of the deceased. He drove the cattle away and entered inside the house and found the deceased was lying dead with bleeding injury and a sickle was lying at that place and there was cut injury on the neck of the deceased and the appellant was not found in the house. P.W.1 suspected that in connection with providing food to the appellant, there was dispute between the mother and the son and the appellant cut the neck of the deceased by a sickle out of anger and thereafter absconded. The informant also ascertained from the co-villagers that they heard the shout of the appellant with the deceased in the afternoon.

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The informant intimated the matter to the Ward Member and came to the Police Station where his oral report was reduced to writing and it was read over and explained to him and he put his signature on the written report.

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On the basis of the F.I.R. presented by P.W.1, Khurda P.S. Case No.131 dated 15.04.2006 was registered under section 302 of the Indian Penal Code against the appellant.

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P.W.18 Nimain Charan Sethy, the Inspector-in-

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Charge of Khurda Police Station after registering the case, took up the investigation. He visited the spot on the very day at about 8.00 p.m. which was the house of the deceased and the appellant. He sent requisition to the Scientific Officer. During his visit to the spot, he found the deceased was lying dead with cut injury on her throat in a pool of blood and the wearing apparels of the deceased were also blood-stained. One iron sickle with wooden handle having stains of blood was also lying near the dead body. The house of the appellant was kept guarded till the arrival of scientific team on 16.04.2006. The scientific team collected photographs from the spot, blood stained earth, sample earth etc. and the iron sickle which were seized as per the seizure list vide Ext.4 by P.W.18. The Investigating Officer also prepared the spot visit note vide Ext.8. He held inquest over the

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dead body and prepared inquest report vide Ext.2. The dead body was sent for postmortem examination. On 16.04.2006, the appellant was arrested from the house of one Mana Nayak and his wearing apparels were also seized as per seizure list, Ext.3. The appellant was forwarded to the Court of the learned S.D.J.M., Khurda on 16.04.2006. The seized sickle was sent to the Medical Officer who conducted the postmortem examination over the dead body of the deceased, who gave his opinion that external injury noticed on the person of the deceased was possible by such sickle. The I.O. received the post mortem report, sent the sickle and other articles to S.F.S.L., Rasulgarh for examination and report. On completion of investigation, on 10.07.2006, chargesheet was submitted against the appellant under section 302 of I.P.C.

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Framing of Charges

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After submission of chargesheet, the case was committed to the Court of Session, where the learned trial Court framed charge against the appellant as aforesaid. Since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt.

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Prosecution Witnesses, Exhibits and Material Objects :

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In order to prove its case, the prosecution examined eighteen witnesses in toto.

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P.W.1 Trinath Naik is the informant in the case and he is the maternal uncle of the appellant and brother of the deceased. He stated that the appellant was frequently assaulting his mother (deceased) prior to the occurrence and he suspected that the appellant might have committed murder of the deceased. He also proved the F.I.R. marked as Ext.1 and the inquest report marked as Ext.2.

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P.W.2 Manu Naik stated that the appellant and his mother were staying together at Goditangi by constructing a house in a government land about three years back. He heard from the informant (P.W.1) that the mother of the appellant was murdered in her house and after getting such information, he came to the house of the appellant and saw the deceased was lying dead and there was cut injury on her neck which was bleeding and one sickle was lying near the dead body stained with blood.

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P.W.3 Hadu Naik was the Ward Member of the village

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and in his presence, the inquest was held and he also proved the inquest report vide Ext.2. He stated that P.W.1, the informant

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told him that the appellant had assaulted the deceased prior to the incident and that he suspected that the appellant might have committed the murder of the deceased.

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P.W.4 Dukhishyam Naik, P.W.5 Satya Naik, P.W.6 Pabana Naik, P.W.7 Manoranjan Nayak, P.W.8 Mana Nayak, P.W.9 Kashinath Bhoi, P.W.10 Bijaya @ Bijaya Kumar Naik, P.W.11 Mathura Naik and P.W.12 Sudarsan Naik have not supported the prosecution for which they were declared hostile by the prosecution.

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P.W.13 Rabi Kumar Naik is a witness to the inquest

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over the dead body of the deceased and proved the inquest report vide Ext.2.

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P.W.14 Dr. Prafulla Kumar Panda was attached to D.H.H. Khurda as Gyneac Specialist, who on police requisition conducted postmortem examination over the dead body of the deceased. He stated that the cause of death was asphyxia due to cut of throat including trachea (wind pipe) by a sharp cutting weapon. The age of the injury and time since death to postmortem examination was within 18 to 36 hours. He proved the postmortem examination report vide Ext.4.

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P.W.15 Ramesh Chandra Harichandan was the constable attached to Khurda police station who escorted the

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dead body of the deceased for post mortem examination and proved the dead body challan vide Ext.6. He is also a seizure witness in whose presence the wearing apparels of the deceased, i.e. one red with white printed cotton saree with blood stain marks, one white saya with blood stain marks and sample blood of the deceased were seized by the IIC, Khurda police station. He also proved the seizure list which was marked as Ext.7.

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P.W.16 Prasanna Kumar Senapati was working as Laboratory Asst. in District Forensic Science Laboratory, Khurda. He stated that on police requisition, he accompanied the Investigating Officer and on the spot, he found the deceased was lying dead on the floor of her kitchen room towards the eastern side. He also stated that from the spot, he collected blood stained earth, sample earth, one red colour nylon rope with blood stain mark and one iron sickle with wooden handle having blood stain mark and handed the same to the I.O. He also proved the spot visit report vide Ext.8. He is also a witness to the seizure of articles collected by him seized by the I.O. as per seizure list vide Ext.9.

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P.W.17 Banshidhar Bhoi was the A.S.I. at S.F.S.L.,

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Rasulgarh, Bhubaneswar who is witness to the seizure of one sickle having stained with blood, one plastic rope having blood

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stained, sample earth and blood stained as per seizure list vide Ext.9.

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P.W.18 Nimain Charan Sethy was the Inspector-in-

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Charge of Khurda Police Station, who is the investigating officer in the case.

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The prosecution also exhibited fourteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3 is the seizure list, Ext.4 is the postmortem examination report, Ext.5 is the opinion of the doctor, Ext.6 is the dead body challan, Ext.7 is the seizure list, Ext.8 is the spot visit report of P.W.16, Ext.9 is the seizure list, Ext.10 is the photographs of deceased.

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The prosecution also proved six materials objects. M.O.I is the red with white printed saree (cotton) with blood stain marks, M.O.II is the white saya with blood stain marks, M.O.III is the packet containing blood stained earth, M.O.IV is the packet containing sample earth, M.O.V is the red colour nylon rope and M.O.VI is the iron sickle with wooden handle having blood stain mark.

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Defence Plea

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The defence plea of the appellant was one of complete denial and it was specifically pleaded that on the date

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of occurrence, he was not present in the house and he has been falsely entangled in the case.

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Findings of the Trial Court :

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The learned trial Court on a careful analysis of the evidence on record adduced by the witnesses, came to the conclusion that the death of the deceased was homicidal in nature. The Court found the following eight circumstances against the appellant:

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(i) The accused and the deceased were residing in one house (P.W.1 and P.W.2);

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(ii) The house of the deceased was situated at an isolated place. (P.W.18);

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(iii) The accused was in the habit of picking up quarrel with the deceased on previous occasions (P.W.1);

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(iv) Soon after the occurrence, the accused was found absent from the house (P.W.1 and P.W.8);

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(v) On the same night of the occurrence, at night, the accused had been to the house of P.W.8, wherefrom he was arrested by the Police (P.W.8);

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(vi) There were cut injuries on the neck and throat of the deceased (P.Ws.1, 2, 3, 4, 7, 14 and 18);

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(vii) One iron sickle (M.O.VI) was found lying near the dead body of the deceased. (P.Ws.1, 2, 3, 4, 7 and 18);

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(viii) According to the opinion of the Medical Officer, the external injuries were possible by iron sickle, which was sent by the I.O. to the Medical Officer for examination (P.W.14).

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On the basis of the aforesaid circumstantial evidence,

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the learned trial Court came to the conclusion that the chain of circumstance is complete and it leads to the conclusion that in all probability, the appellant was the author of the crime and accordingly, held the appellant guilty under section 302 of the Indian Penal Code.

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Submissions of the Parties :

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Mr. Asish Chandra Rath, learned counsel appearing for the appellant argued that there is no dispute that in view of the evidence of the doctor and the other materials available on record that the deceased died a homicidal death, her dead body was found inside her house, one sickle was also found near the dead body, the cause of death was on account of cut injury to

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the throat of the deceased and the doctor has opined that the injury found on the throat of the deceased was possible by the sickle, but there is no cogent evidence on record that on the date of occurrence, the appellant was present in the house much less he was last seen in the company of the deceased prior to the occurrence. Learned counsel further argued that there are evidence available on record that prior to the date of occurrence, the appellant was not staying in his house and he was staying in the house of his aunt from where he was arrested. The learned counsel further argued that even though the scientific team visited the spot and collected some articles but the finger prints, if any, found on the articles were not taken nor the finger prints of the appellant was collected and sent to the Finger Print Expert for comparison. Though the iron sickle and other articles were sent for chemical examination, but the chemical examination report has not been proved. According to Mr. Rath, from the evidence available on record, even if it is held that the appellant was frequently assaulting the deceased prior to the occurrence, in absence of any other clinching evidence particularly relating to his presence on the date of occurrence in the house, the circumstances proved cannot be a ground to hold that the appellant was the author of the crime.

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Mr. Jateswar Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that the circumstantial evidence adduced by the prosecution as has been established by the witnesses are very clinching and all the circumstances taken together form a complete chain and therefore, the learned trial Court has rightly found the appellant guilty under section 302 of the Indian Penal Code.

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Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that there is no direct evidence as to who committed the murder of the deceased, when and how and the prosecution case hinges on circumstantial evidence. It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinization of the evidence is necessary and it is the duty of the Court to see that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature and all the links in the chain of events must be established clearly beyond reasonable doubt and established

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circumstances should be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. Whether the chain of events is complete or not would depend on the facts of each case emanating from the evidence. The Court should not allow suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed away by emotional consideration.

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Whether the deceased met with homicidal death :

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Let us first assess the evidence on record to see how far the prosecution has successfully established that the deceased met with a homicidal death or not.

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Apart from the inquest report (Ext.2), the evidence of P.W.14 Dr. Prafulla Kumar Panda is very relevant in this respect. He conducted the post mortem examination over the dead body of the deceased on 16.04.2006 at District Headquarters Hospital, Khurda and made the following observations:

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External injuries :

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(i) Incised wound elliptical in shape 5” x 4” x 3” and deep into the neck with blood tinged appearance and blood clots and haemorrhage;

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(ii) Trachea was incised completely in the middle and haemorrhagic;

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(iii) Abrasion 1/2” x ½” x ¼” on the left lower eye lid.

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All the above three injuries were opined to be ante

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mortem in nature and the duration of the injury was within 18 to 36 hours.

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Internal injuries :

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Liver, Spleen, kidneys, brain, lungs were intact and pale. Vessels of the neck were incised and antemortem in nature. Heart was empty.

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The doctor has opined as per his report vide Ext.4 that the cause of death was asphyxia due to cut on the throat including trachea (wind pipe) by a sharp cutting weapon. The age of the injury and time since death to post mortem examination was within 18 to 36 hours.

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The learned counsel for the appellant has not challenged the findings of the post mortem report.

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After perusing the evidence on record, the post mortem examination report (Ext.4) and the evidence of the

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doctor (P.W.14), we are of the humble view that the prosecution has proved the death of the deceased to be homicidal in nature and therefore, the finding of the learned trial Court on this aspect is quite justified.

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Out of eighteen witnesses examined on behalf of the prosecution, P.Ws.4 to 12 have not supported the prosecution case and they have been declared hostile.

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P.W.1, the informant is related to both the deceased as well as the appellant and he has stated that on the day of occurrence, he had come to the house of the appellant when he found that the cattle were pulling straws from the thatched roof of the house of the appellant and he drove out the cattle and found the dead body of the deceased was lying inside the house and there was cut injury on the neck of the deceased and a sickle was lying near the dead body, but the appellant was not present in the house. He has further stated that the appellant was frequently assaulting the deceased prior to the incident. In the cross-examination, he has stated that he had gone to the house of the appellant fifteen days prior to the occurrence and on that day, the appellant had gone to the house of his aunt, Kanak Naik of village Rajib Nagar and was staying there and the police arrested him there. He further stated that his village is at

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a distance of 25 kms away from the village Rajib Nagar. The prosecution has not examined the aunt Kanak Naik to disprove this evidence which has been elicited in the cross-examination of the P.W.1.

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Even though in the F.I.R., P.W.1 has stated that on the date of occurrence also, the appellant had assaulted the deceased and he had been to the house of the appellant to subside the matter, but in Court, his evidence is totally silent in that respect. He has stated that he had not read the contents of the F.I.R. and he could not say about the contents of the F.I.R. The first information report is never treated as a substantive piece of evidence. It can only be used for corroborating and contradicting its maker when he appears in Court as a witness. The contents of the F.I.R. have not been confronted to P.W.1. Therefore, from the evidence of P.W.1, the presence of the appellant in his house with the deceased on the date of occurrence has not been proved.

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P.W.2 and P.W.3 have simply stated to have seen

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the dead body of the deceased was lying in her house with cut injury on the neck and a sickle was lying by the side of the body. P.W.3 was the Ward Member and he has stated that P.W.1 told him that the appellant had assaulted the deceased prior to the

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incident. However in the cross-examination, he has stated that he had not received any allegation as the Ward Member against the appellant that he had assaulted his mother (deceased) prior to the incident.

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Therefore, from the evidence of P.W.2 and P.W.3, it does not appear that on the date of occurrence, the appellant was present in his house with the deceased much less any quarrel ensued between the two for any reason whatsoever on that day.

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The Scientific Officer (P.W.16) has stated that he visited the spot as per police requisition on 16.04.2006 being accompanied by the Investigation Officer and found the deceased was lying dead and from the spot, he collected some articles and one Mr. S.K. Swain, Finger Print Sub-Inspector and B.D. Bhoi, A.S.I. Photography were also present. The I.O. also seized some articles which were produced before him at the spot on being collected by P.W.16. The packets were marked as M.O.III, M.O.IV, M.O.V and M.O.VI. However, there is no evidence adduced by the Investigating Officer that after the appellant was arrested on 16.04.2006 from the house of Mana Naik, any steps were taken to collect the finger prints of the appellant, rather he has specifically stated in the cross-

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examination that he had not collected the specimen finger print impression of the appellant. Some materials collected from the spot along with the wearing apparels of the appellant so also the deceased were sent for chemical examination to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar on 26.06.2006 through Court, but the chemical examination report has not been proved in this case. There is also no finger print expert‟s report.

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The learned trial Court, basing on the evidence of P.W.1 and P.W.8, has held that soon after the occurrence, the appellant was found absent from the house. P.W.1 has not stated at all to have seen the appellant in his house on the date of occurrence. He has stated that when he found the dead body of the deceased lying inside her house with bleeding from her neck, the appellant was not present. The evidence of P.W.8 is silent in that respect and she stated that the appellant came to her house in the night of occurrence, took night meal and remained in her house and in that night, the police arrested him and took him to the police station. No other witness has stated about the presence of the appellant on the date of occurrence in his house in the company of the deceased.

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Even though the prosecution has successfully proved that the deceased met with a homicidal death and a sickle which was found near the dead body inside the house of the deceased could have caused the injury on the throat of the deceased, but in absence of any other clinching material on record particularly with respect to the presence of the appellant in the company of the deceased at the time of occurrence, it is very difficult to say that the prosecution has successfully established the appellant to be the author of the crime.

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Conclusion :

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In view of the settled position of law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person, in the case in hand, it cannot be said that cumulative effect of the circumstances negatives the innocence of the appellant and bring the offence home beyond all reasonable doubt. Therefore, we are of the view that the learned trial Court was not justified in convicting the appellant under section 302 of the Indian Penal Code.

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Accordingly, the impugned judgment and order of

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the learned trial Court is hereby set aside. The JCRLA is allowed. The appellant is acquitted of the charge under section 302 I.P.C.

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The petitioner shall be released forthwith from jail custody, if he is not required to be detained in any other case.

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Before parting with the case, we would like to put on record our appreciation for Mr. Asish Chandra Rath, the learned counsel for the appellant for rendering his valuable help and assistance towards in arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate.

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S.K. Sahoo, J.

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.............................. Savitri Ratho, J.

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Orissa High Court, Cuttack The 18^th February 2025/Bichi

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Signature Not Verified

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Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 25-Feb-2025 10:50:50

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