Orissa High Court: In an appeal under Section of the (‘CrPC’) against Trial Court’s decision finding the convict- wife guilty of offence punishable under Section of (‘IPC’) for husband’s (‘deceased-husband’) murder, the Division Bench of SK Sahoo* and Chittaranjan Dash, JJ. allowed the appeal and set aside the impugned decision for lack of clinching evidence and non-formation of complete chain of evidence.
Factual Matrix
The deceased- husband’s second wife had filed a first information report alleging that the first wife of the deceased (‘convict’) had poured kerosene on deceased-husband’s body. It was stated that she took him to clinic and then to C.W.S. Hospital, however, the doctor referred the deceased to Ispat General Hospital, Rourkela and accordingly, the deceased was admitted in I.G.H., but during the course of the treatment, on 28-06-2011, the deceased succumbed to his injuries. Subsequently, after the investigation, submission of charge-sheet and proceedings of the trial, the convict was guilty of the offence punishable under Section of the and was sentenced to undergo imprisonment for life.
Circumstantial Evidence
Placing reliance upon Sharad Biridhichand Sarda v. State of Maharashtra, , the Court reiterated that the circumstances from which the conclusion of guilt is to be drawn against the accused should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The Court added that these circumstances should be of conclusive nature, and they should exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The Court observed that, a very careful, cautious and meticulous appreciation of evidence is necessary when the case is based on circumstantial evidence, the prosecution must elevate its case from the realm of ‘may be true’ to the plane of ‘must be true’.
Whether evidence relating to dying declaration as deposed to by the second wife can be acted upon?
The Court perused the statement of the second wife, who was also the complainant, whereby, she stated that, she heard screaming of the deceased for which she rushed in and found the deceased with severe burn injuries and was standing naked at the door shouting for help. It was also stated that the convict came out of the inner-house and she was having a satisfying smile. As per second wife, the deceased told her that the convict poured kerosene on him and set him on fire with a matchstick. The Court noted that the evidence of the son of the deceased and the convict was totally silent regarding any dying declaration being made by the deceased either at the spot or at any place till he breathed his last. Regarding the contention against the evidence of the son, the Court said that the evidence cannot be discarded merely because he is convict’s son, inasmuch as it cannot be lost sight of the fact that the deceased was his father and there is no proposition of law that relatives are to be treated as untruthful witnesses. The Court added that it is unlikely that the close relatives of a deceased would falsely implicate an innocent person for a heinous crime like murder and let the real culprit escape the clutches of law and gallows of confinement.
The Court said that in the matter at hand, the second wife and the son had indicated that not only the bedroom of the deceased but also the entrance room where the son was sleeping was dark and the duration of the occurrence was very short, hence, it created a doubt as to whether the deceased had ample opportunity to observe and identify the culprit correctly as to who poured kerosene on him and set him on fire striking a match stick so as to make the declaration before his second wife. Further, the Court said that the evidence of the son was silent as to any dying declaration, therefore, a doubt did exist relating to the dying declaration being made by the deceased before his second wife.
Motive
Regarding motive of the convict to commit such ghastly crime, the Court said that the contention that on the day of incident, merely because the deceased slept with his second wife, led a trigger for the convict to commit the ghastly crime of killing her husband by pouring kerosene, was very difficult to be accepted. The Court added that the evidence of the son and the second wife of the deceased was clear on the aspect that the second wife usually stayed with the deceased and that he frequently visited the convict and his son. The Court said that the convict had accepted the second marriage of her husband, which took place twenty years prior to the date of occurrence and they were in visiting terms and merely because on the occurrence night, second wife had slept with the deceased in the inner room, it cannot be said to be a strong motive on the part of the convict to kill her husband/ deceased.
Whether the recovery statement by the convict is admissible under Section 27 of the Evidence Act?
The Court noted that the Investigating Officer stated that he recovered a green colour plastic jerrycan containing 300 ml. of kerosene kept concealed near a brick heap, however, in the cross-examination, the I.O. stated not to have measured the kerosene available in jerrycan, but one of the prosecution witness said that the jerrycan contained about 20 to 30 ml. of kerosene and jerrycans of that type were available in the open market and it is also a common household item. Therefore, the Court said that this was a discrepancy relating to the quantity of kerosene oil found in the jerrycan and it cannot be lightly brushed aside. Further, the Court said that when the seizure of the jerrycan was made while it was lying in an open and accessible place and it had not remained out of visibility of others, in normal circumstances, it cannot be said that it was within the exclusive knowledge of the convict and that such jerrycan could not have been recovered without her assistance. Relying upon Anter Singh v. State of Rajasthan, , the Court said that to attract Section 27 of the Evidence Act, it is necessary that the police must have discovered something as per the information provided by the accused person, if something is quite easily discoverable, even without the assistance of the accused, the same can hardly be called as an ‘information’ admissible under the Section. Additionally, the Court clarified that, merely because an object is openly accessible to public, the same would not vitiate the evidence under Section 27. The real test is not to ascertain whether the object/material is openly accessible, rather it is to see whether the same was visible to the bare eyes of the common people passing through the said accessible place.
Therefore, the Court said that the prosecution’s case is that the kerosene jerrycan was lying near the brick heap, however, neither there was any evidence that the brick heap was inaccessible to public nor there was any indication that it was not within the visibility of the others. Thus, when the jerrycan was simply found near the brick heap in an open space, it cannot be said that it is only the recovery statement of the convict which led to the discovery of the jerrycan. Hence, the recovery statement rendered by the convict and the consequential recovery of jerrycan cannot be utilized against the convict as per the contours and mandate of Section 27 of the Evidence Act.
Conclusion
The Court allowing the appeal, set aside the impugned judgment and order of conviction under section of the , for lack of clinching evidence.
[Sunita Mundari v. State of Odisha, JCRLA No.12 of 2014, Decided on: 04-07-2024]
*Judgment Authored by: Justice SK Sahoo
Advocates who appeared in this case :
For the appellant: Advocate Biswajit Nayak
For the respondent: Addl. Standing Counsel Rajesh Tripathy
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