Sarojini Giri Vs. State of Orissa - Court Judgment

SooperKanoon Citationsooperkanoon.com/1084155
CourtOrissa High Court
Decided OnAug-16-2012
AppellantSarojini Giri
RespondentState of Orissa
Excerpt:
orissa high court, cuttack. jail criminal appeal no.7 of 2006 arising out of the judgment and order of sentence dated 18.08.2005 passed by shri j.k. dash, learned additional sessions judge (f.t.c.), baripada in s.t. case no.26/65 of 2005, under sections 302/201/34, i.p.c. ----------------- sarojini giri … appellant … respondent versus state of orissa for appellant : mr. g.k. behera. for respondent : mr. sangram das, addl. standing counsel. ----------------- present: the honourable mr. justice l. mohapatra and the honourable mr. justice c.r. dash ------------------------------------------------------------------------------------------------------------------------ date of argument :10. 08.2012 date of judgment :16. 08.2012 ------------------------------------------------------------------------------------------------------------------------ c.r. dash, j.this appeal is directed against the judgment and order of sentence dated 18.08.2005 passed by learned additional sessions judge(f.t.c.), baripada in s.t. case no.26/65 of 2005 convicting the appellant sarojini giri under sections 302/201/34, i.p.c. and sentencing her to suffer imprisonment for life and to pay fine of rs.1,000/- in default to suffer imprisonment for six months more for the offence under section 302, i.p.c. and to suffer r.i. for one year and to pay fine of rs.500/- in default to suffer 2 r.i. for three months more for the offence under section 201, i.p.c. with direction for both the sentences to run concurrently.2. a compendium of the prosecution case is as follows :on 18.12.2004 one mangulu sethi(p.w.1), who happens to be the gramarakhi under jharpokhoria p.s. was informed about floating of a dead body in subarnarekha canal near village paniposi and jalda. he went to the spot and finding the dead body floating, lodged f.i.r. vide ext.3 at jharpokhoria p.s. the o.i.c. jharpokhoria p.s. (p.w.13) registered the case and took up the investigation. in course of investigation, he (p.w.13) seized certain incriminating materials from the spot near the canal and also held inquest over the dead body of the deceased jiten hansda. on the same day, he visited the house of the appellant sarojini giri and seized bloodstained earth etc. from her house by the assistance of the scientific officer (p.w.8). on production by one manot mohanta (p.w.6), he (p.w.13) seized a camera stated to be loaded with exposed reel and given to him by deceased jiten hansda. on exposure of the reel of the camera some nude photographs of appellant sarojini giri were developed and seized during investigation. on completion of investigation, appellant sarojini giri and her husband nandalal sahu were charge-sheeted for offence under sections 302/201/34, i.p.c.3. prosecution has examined fourteen witnesses to prove the charge. p.w.1 is the informant, who is gramarakhi under jharpokhoria p.s. p.ws.2, 3 and 5 are witnesses, who had seen the deceased last on 16.12.2004 and out of them p.w.5 had seen the deceased in the company of appellant sarojini giri in the night of 16.12.2004 near baripada- kolkata bus. p.w.4 is the widow of deceased jiten hansda. p.w.6 is the witness on whose production the camera containing nude photographs of sarojini giri was seized. p.w.9 is a constable and he is a witness to certain seizures. p.w.10 3 is a witness to the inquest over the dead body of the deceased. p.ws.11 and 12 are mother and father respectively of deceased jiten hansda. p.w.14 is the medical officer, who examined the appellant sarojini giri on police requisition. p.w.7 is the medical officer, who conducted post-mortem over the dead body of the deceased. p.w.8 is the scientific officer, who collected the bloodstained earth scrapping, etc. from the house of the appellant sarojini giri. p.w.13 is the investigating officer.4. defence plea is one of complete denial, but none was examined by the defence as witness.5. the case is based entirely on circumstantial evidence. learned trial court has relied on the following circumstances:i. death of the deceased was caused in between 16.12.2004 to 17.12.2004. ii. his dead body was found floating at about 11.00 a.m. on 18.12.2004 in subarnarekha canal. iii. the deceased was last seen at about 8.30 p.m. on 16.12.2004 in the company of the appellant sarojini giri at jamsula gate near baripada-kolkata bus. iv. the camera given by the deceased to p.w.6 having contained nude photographs of appellant sarojini giri and said p.w.6 having stated to have booked a room in a lodge at baripada in the name of ajay das and one seema to be occupied on 07.12.2004 and such booking having been made at the behest of deceased jiten hansda and the guest register of the hotel having been seized showing entry of one ajay das and seema for occupation on 07.12.2004, illicit relation between deceased jiten hansda and appellant sarojini giri is well established. v. two strand of hairs stained with blood and scrapping of earth stained with blood having been seized from the house of appellant sarojini giri and those materials having contained group “b”. blood of human origin, which tallies with the blood of the deceased as found from the materials seized from near the spot where the dead body was lying, the deceased must have been done to death in the house of 4 appellant sarojini giri and dead body must have been thrown in the canal.6. learned trial court having taken into consideration all the aforesaid circumstances found the appellant sarojini giri guilt of the offence under sections 302/201, i.p.c. but acquitted her husband nandalal sahu of the charges as there was no iota of evidence as against him.7. learned counsel for the appellant submits that if the principles governing circumstantial evidence are taken into consideration and the evidence adduced by the prosecution is re-addressed, it would be found that the prosecution has failed to establish the charge. it is emphatically submitted by learned counsel for the appellant that even if the circumstantial evidence are held to be proved, no conclusion can be arrived at pointing at the hypothesis of the guilt of the appellant. learned additional standing counsel on the other hand supports the impugned judgment and submits that the circumstances proved by the prosecution unerringly points at the guilt of the appellant and none else.8. coming to the first circumstance to the effect that the deceased was seen last in the company of the appellant, relevant evidences are that of p.ws. 2, 3 and 5. p.w.2 is the person, whose motorcycle the deceased had begged to go to gopiballavpur where his wife p.w.4 was staying. taking the motorcycle of p.w.2 deceased jiten hansda and one raju (p.w.3) left jamsula check gate telling him (p.w.2) that they are going to gapiballavpur. at about 8.00 p.m. on 16.12.2004, he (p.w.2) saw the deceased last after his return from gopiballavpur. saying to return his motorcycle in some minutes, deceased jiten hansda left again for somewhere with sapan sethi (p.w.5). p.w.3 had accompanied deceased jiten hansda up to the in-gate of jamsula 5 check gate from where deceased jiten hansda left for gopiballavpur with sapan sethi (p.w.5). so after taking lunch at about 4.00 p.m. on 16.12.2004, p.w.3 had not seen the deceased again on that day. p.w.4, who is the widow of deceased jiten hansda had seen her husband last when he had come to their house at gopiballavpur in the afternoon. p.w.5 had accompanied deceased jiten hansda to gopiballavpur in the motorcycle of p.w.2 and they returned back again to jamsula at 8.30 p.m. before returning the motorcycle to p.w.2, p.w.5 left the deceased jiten hansda near baripada-kolkata bus at jamsula check gate bus stop and near that bus he (p.w.5) saw the appellant sarojini giri standing.9. from the aforesaid evidence, it is clear that on 16.12.2004 p.w.5 was in the company of the deceased almost throughout and he (p.w.5) was last seen in the company of the deceased by p.w.2 at about 8.00 p.m. p.w.5 last saw the deceased at jamsula bus stop near baripada kolkata bus, where the appellant sarojini giri was found standing and it was about 8.30 p.m. then, p.w.5 has been contradicted, so far as the deceased talking to appellant sarojini giri while leaving for gopiballavpur or returning from gopiballavpur are concerned. but it is established even after such contradiction that while leaving for gopiballavpur the deceased had some talk with the appellant sarojini giri.10. it is an admitted fact that appellant sarojini giri has a grocery shop at jamsula check gate. it is also an admitted fact that the deceased was working at table no.9 at jamsula check gate. it is also not disputed that the deceased and others used to purchase grocery items from appellant sarojini giri. therefore, talking of the deceased with sarojini giri itself or finding her present near the baripada-kolkata bus itself does not become incriminating in as much as there is nothing on record to prove further that the 6 deceased and appellant sarojini giri left together from there or appellant sarojini giri was found absent also after the night of 16.12.2004. p.w.5 in his evidence has testified that since thursday, i.e., 16.12.2004 till saturday he did not see sarojini giri(appellant) but on crossreference to the evidence of the i.o. (p.w.13) it is found that p.w.5 has been contradicted successfully under section 145 of the evidence act on this aspect. it, therefore, cannot be held that after 16.12.2004 deceased as well as appellant sarojini giri were not seen. this circumstance proved as a basic / primary fact, in the light of principle decided by hon’ble supreme court in the case of m.g. agarwal vs. state of maharashtra, a.i.r. 1963 s.c.200 cannot itself be held to be incriminatory, and it cannot be held that the deceased was seen last in the company of appellant sarojini giri in view of the admitted fact that the presence of both near the bus stop or near baripada-kolkata bus was not abnormal or unusual as the place of business of both of them was the same place and the part of the time was not odd hours.11. the next circumstance is nude photographs of the appellant sarojini giri as exposed from the reel of the camera by the investigating officer after seizure on production by p.w.6. there is, however, nothing on record to prove that the said camera belongs to the deceased. the investigating officer specifically has testified that he has not directed the investigation to ascertain the ownership of the seized camera and he has also testified that he cannot say who took exposure of the nude picture of the appellant sarojini giri. from the photograph, therefore, it cannot be held that deceased had taken nude photographs of appellant sarojini giri and the camera also belongs to the deceased. though the guest register of hotel swagat had been seized to prove the entry of name of one ajay das and 7 seema for occupation of one of the rooms on 07.12.2004, no staff of the said lodge has been examined to prove the identity of appellant sarojini giri or the deceased to further prove the fact that the deceased in the company of the appellant sarojini giri had stayed in a room of the lodge on 07.12.2004. further as the nude photographs of the appellant sarojini giri saw the light of the day after exposure by the investigating officer, it cannot also be held that for the conduct of exposing nude photographs of the appellant sarojini giri, she (appellant) had nurtured a motive to kill the deceased. another feature which arouse suspension is the factum of handing over of the camera containing intimate photographs of the appellant, a lady with whom the deceased had illicit relationship to a person like p.w.6. there was no point for the deceased to handover the camera containing nude photographs of appellant sarojini giri to p.w.6, which p.w.6 produced before the police after the death of the deceased. though there is no relevant evidence on the point, the investigating officer during investigation came to knot as deposed before the court that appellant sarojini giri was the first wife of the accused nandalal sahu (since acquitted), who had married to another lady of baharguda. in such situation appellant sarojini giri might be having intimate relationship with deceased and some others also and being envious of the relationship of the appellant with the deceased who is stated to be a harden criminal, some other unrequited lover of the appellant or husband of the appellant might have killed the deceased. we are constrained to take such a view especially in view of the fact that, there is nothing on record to prove that there was some dissension between the deceased and appellant sarojini giri or the deceased at any point of time exploited such relationship. it might have so happened also that p.w.6 being in love with appellant sarojini giri might have committed the crime and he (p.w.6), who had exposed the nude photographs 8 of sarojini giri produced the camera before the investigating officer to misdirect the investigation after committing the murder of the deceased himself finding him falling behind the appellant sarojini giri and apprehending danger to both himself and appellant sarojini giri as the deceased was a criminal. in view of such fact, from the nude photographs of appellant sarojini giri and booking of a room in the name of one ajay das and seema (nonexistent persons) by p.w.6 stated to be at the behest of the deceased, it cannot be held that the deceased and appellant sarojini giri had illicit relationship and as the deceased had taken nude photographs of sarojini giri, sarojini giri killed him.12. chemical examination report proves the existence of human blood of group “b”. on earth scrappings and two strands of hairs seized from the house of the appellant sarojini giri. there are also presence of human blood in the panikhi and some more earth scrappings collected from the house of appellant sarojini giri. there is, however, no evidence as to what is the blood grouping of appellant sarojini giri. another feature of the prosecution case is that appellant sarojini giri was found to have sustained about six injuries and learned trial court has taken those injuries to be the outcome of tussle in course of commission of murder of the deceased by her and some others. we are unable to endorse to this view of learned trial court. the investigating officer in specific term has testified that the deceased was a hardened criminal under jharpokhoria p.s. the appellant sarojini giri alone therefore could not have committed the murder. this might have so happened that either finding another person in compromising position with appellant sarojini giri in her house the deceased mounted the assault to be killed by that another person in counter assault or finding the deceased in compromising position with appellant sarojini giri, her husband assaulted the 9 appellant provoking the deceased to attack in counter and to be killed by defence attack or finding the deceased in compromising position with appellant, another person in intimate relationship with the deceased might have attacked both to kill the deceased whose dead body might have been thrown later on by help of appellant sarojini giri. in view of such gap in the circumstances, the finding of certain bloodstained articles or earth scrappings from the spot house does not become incriminating so far as the substantive charge of murder against the appellant is concerned.13. from the above discussion, the prosecution can be held to have proved the following circumstances:i. the deceased was last seen at about 8.30 p.m. near baripada-kolkata bus on 16.12.2004 and the present appellant was also seen near that area. ii. some nude photographs of the appellant were captured by somebody in a camera seized by the police on production by p.w.6. iii. some bloodstained articles like earth scrappings, two strand of hairs, etc. out of which some were stained with human blood of group ‘b’ were seized from the house of the appellant sarojini giri.14. taking into consideration the entire evidence in their totality, it is difficult to draw an inference unerringly pointing at the guilt of the appellant alone. we are, therefore, constrained to hold that prosecution has failed to prove the circumstances as placed by it and the appellant is entitled to the benefit of doubt.15. in the result, the impugned judgment and order of sentence are set aside. the appeal is allowed. the appellant be released from custody forthwith, if her detention is not required in any other case”16. the nude photographs proved in this case along with negatives be sealed forthwith by the office. …………………… c.r. dash, j.l. mohapatra, j.i agree. ……………………… l. mohapatra, j.orissa high court, cuttack. the 16th day of august, 2012/dhal.
Judgment:

ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No.7 of 2006 Arising out of the judgment and order of sentence dated 18.08.2005 passed by Shri J.K. Dash, learned Additional Sessions Judge (F.T.C.), Baripada in S.T. Case No.26/65 of 2005, under Sections 302/201/34, I.P.C. ----------------- Sarojini Giri … Appellant … Respondent Versus State of Orissa For Appellant : Mr. G.K. Behera. For Respondent : Mr. Sangram Das, Addl. Standing Counsel. ----------------- PRESENT: THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ------------------------------------------------------------------------------------------------------------------------ Date of Argument :

10. 08.2012 Date of Judgment :

16. 08.2012 ------------------------------------------------------------------------------------------------------------------------ C.R. Dash, J.This appeal is directed against the judgment and order of sentence dated 18.08.2005 passed by learned Additional Sessions Judge(F.T.C.), Baripada in S.T. Case No.26/65 of 2005 convicting the appellant Sarojini Giri under Sections 302/201/34, I.P.C. and sentencing her to suffer imprisonment for life and to pay fine of Rs.1,000/- in default to suffer imprisonment for six months more for the offence under Section 302, I.P.C. and to suffer R.I. for one year and to pay fine of Rs.500/- in default to suffer 2 R.I. for three months more for the offence under Section 201, I.P.C. with direction for both the sentences to run concurrently.

2. A compendium of the prosecution case is as follows :On 18.12.2004 one Mangulu Sethi(P.W.1), who happens to be the Gramarakhi under Jharpokhoria P.S. was informed about floating of a dead body in Subarnarekha Canal near village Paniposi and Jalda. He went to the spot and finding the dead body floating, lodged F.I.R. vide Ext.3 at Jharpokhoria P.S. The O.I.C. Jharpokhoria P.S. (P.W.13) registered the case and took up the investigation. In course of investigation, he (P.W.13) seized certain incriminating materials from the spot near the Canal and also held inquest over the dead body of the deceased Jiten Hansda. On the same day, he visited the house of the appellant Sarojini Giri and seized bloodstained earth etc. from her house by the assistance of the Scientific Officer (P.W.8). On production by one Manot Mohanta (P.W.6), he (P.W.13) seized a camera stated to be loaded with exposed reel and given to him by deceased Jiten Hansda. On exposure of the reel of the camera some nude photographs of appellant Sarojini Giri were developed and seized during investigation. On completion of investigation, appellant Sarojini Giri and her husband Nandalal Sahu were charge-sheeted for offence under Sections 302/201/34, I.P.C.

3. Prosecution has examined fourteen witnesses to prove the charge. P.W.1 is the informant, who is Gramarakhi under Jharpokhoria P.S. P.Ws.2, 3 and 5 are witnesses, who had seen the deceased last on 16.12.2004 and out of them P.W.5 had seen the deceased in the company of appellant Sarojini Giri in the night of 16.12.2004 near Baripada- Kolkata bus. P.W.4 is the widow of deceased Jiten Hansda. P.W.6 is the witness on whose production the camera containing nude photographs of Sarojini Giri was seized. P.W.9 is a constable and he is a witness to certain seizures. P.W.10 3 is a witness to the inquest over the dead body of the deceased. P.Ws.11 and 12 are mother and father respectively of deceased Jiten Hansda. P.W.14 is the Medical Officer, who examined the appellant Sarojini Giri on police requisition. P.W.7 is the Medical Officer, who conducted post-mortem over the dead body of the deceased. P.W.8 is the Scientific Officer, who collected the bloodstained earth scrapping, etc. from the house of the appellant Sarojini Giri. P.W.13 is the Investigating Officer.

4. Defence plea is one of complete denial, but none was examined by the defence as witness.

5. The case is based entirely on circumstantial evidence. Learned trial court has relied on the following circumstances:I. Death of the deceased was caused in between 16.12.2004 to 17.12.2004. II. His dead body was found floating at about 11.00 A.M. on 18.12.2004 in Subarnarekha Canal. III. The deceased was last seen at about 8.30 P.M. on 16.12.2004 in the company of the appellant Sarojini Giri at Jamsula Gate near Baripada-Kolkata bus. IV. The Camera given by the deceased to P.W.6 having contained nude photographs of appellant Sarojini Giri and said P.W.6 having stated to have booked a room in a lodge at Baripada in the name of Ajay Das and one Seema to be occupied on 07.12.2004 and such booking having been made at the behest of deceased Jiten Hansda and the Guest Register of the Hotel having been seized showing entry of one Ajay Das and Seema for occupation on 07.12.2004, illicit relation between deceased Jiten Hansda and appellant Sarojini Giri is well established. V. Two strand of hairs stained with blood and scrapping of earth stained with blood having been seized from the house of appellant Sarojini Giri and those materials having contained group “B”. blood of human origin, which tallies with the blood of the deceased as found from the materials seized from near the spot where the dead body was lying, the deceased must have been done to death in the house of 4 appellant Sarojini Giri and dead body must have been thrown in the Canal.

6. Learned trial court having taken into consideration all the aforesaid circumstances found the appellant Sarojini Giri guilt of the offence under Sections 302/201, I.P.C. but acquitted her husband Nandalal Sahu of the charges as there was no iota of evidence as against him.

7. Learned counsel for the appellant submits that if the principles governing circumstantial evidence are taken into consideration and the evidence adduced by the prosecution is re-addressed, it would be found that the prosecution has failed to establish the charge. It is emphatically submitted by learned counsel for the appellant that even if the circumstantial evidence are held to be proved, no conclusion can be arrived at pointing at the hypothesis of the guilt of the appellant. Learned Additional Standing Counsel on the other hand supports the impugned judgment and submits that the circumstances proved by the prosecution unerringly points at the guilt of the appellant and none else.

8. Coming to the first circumstance to the effect that the deceased was seen last in the company of the appellant, relevant evidences are that of P.Ws. 2, 3 and 5. P.W.2 is the person, whose motorcycle the deceased had begged to go to Gopiballavpur where his wife P.W.4 was staying. Taking the motorcycle of P.W.2 deceased Jiten Hansda and one Raju (P.W.3) left Jamsula Check Gate telling him (P.W.2) that they are going to Gapiballavpur. At about 8.00 P.M. on 16.12.2004, he (P.W.2) saw the deceased last after his return from Gopiballavpur. Saying to return his motorcycle in some minutes, deceased Jiten Hansda left again for somewhere with Sapan Sethi (P.W.5). P.W.3 had accompanied deceased Jiten Hansda up to the in-gate of Jamsula 5 Check Gate from where deceased Jiten Hansda left for Gopiballavpur with Sapan Sethi (P.W.5). So after taking lunch at about 4.00 P.M. on 16.12.2004, P.W.3 had not seen the deceased again on that day. P.W.4, who is the widow of deceased Jiten Hansda had seen her husband last when he had come to their house at Gopiballavpur in the afternoon. P.W.5 had accompanied deceased Jiten Hansda to Gopiballavpur in the motorcycle of P.W.2 and they returned back again to Jamsula at 8.30 P.M. Before returning the motorcycle to P.W.2, P.W.5 left the deceased Jiten Hansda near Baripada-Kolkata bus at Jamsula Check Gate Bus stop and near that bus he (P.W.5) saw the appellant Sarojini Giri standing.

9. From the aforesaid evidence, it is clear that on 16.12.2004 P.W.5 was in the company of the deceased almost throughout and he (P.W.5) was last seen in the company of the deceased by P.W.2 at about 8.00 P.M. P.W.5 last saw the deceased at Jamsula bus stop near Baripada Kolkata Bus, where the appellant Sarojini Giri was found standing and it was about 8.30 P.M. then, P.W.5 has been contradicted, so far as the deceased talking to appellant Sarojini Giri while leaving for Gopiballavpur or returning from Gopiballavpur are concerned. But it is established even after such contradiction that while leaving for Gopiballavpur the deceased had some talk with the appellant Sarojini Giri.

10. It is an admitted fact that appellant Sarojini Giri has a Grocery shop at Jamsula Check Gate. It is also an admitted fact that the deceased was working at Table No.9 at Jamsula Check Gate. It is also not disputed that the deceased and others used to purchase grocery items from appellant Sarojini Giri. Therefore, talking of the deceased with Sarojini Giri itself or finding her present near the Baripada-Kolkata bus itself does not become incriminating in as much as there is nothing on record to prove further that the 6 deceased and appellant Sarojini Giri left together from there or appellant Sarojini Giri was found absent also after the night of 16.12.2004. P.W.5 in his evidence has testified that since Thursday, i.e., 16.12.2004 till Saturday he did not see Sarojini Giri(appellant) but on crossreference to the evidence of the I.O. (P.W.13) it is found that P.W.5 has been contradicted successfully under Section 145 of the evidence Act on this aspect. It, therefore, cannot be held that after 16.12.2004 deceased as well as appellant Sarojini Giri were not seen. This circumstance proved as a basic / primary fact, in the light of principle decided by Hon’ble Supreme Court in the case of M.G. Agarwal vs. State of Maharashtra, A.I.R. 1963 S.C.200 cannot itself be held to be incriminatory, and it cannot be held that the deceased was seen last in the company of appellant Sarojini Giri in view of the admitted fact that the presence of both near the bus stop or near Baripada-Kolkata bus was not abnormal or unusual as the place of business of both of them was the same place and the part of the time was not odd hours.

11. The next circumstance is nude photographs of the appellant Sarojini Giri as exposed from the reel of the camera by the Investigating Officer after seizure on production by P.W.6. There is, however, nothing on record to prove that the said camera belongs to the deceased. The Investigating Officer specifically has testified that he has not directed the investigation to ascertain the ownership of the seized camera and he has also testified that he cannot say who took exposure of the nude picture of the appellant Sarojini Giri. From the photograph, therefore, it cannot be held that deceased had taken nude photographs of appellant Sarojini Giri and the camera also belongs to the deceased. Though the Guest Register of Hotel Swagat had been seized to prove the entry of name of one Ajay Das and 7 Seema for occupation of one of the rooms on 07.12.2004, no staff of the said lodge has been examined to prove the identity of appellant Sarojini Giri or the deceased to further prove the fact that the deceased in the company of the appellant Sarojini Giri had stayed in a room of the lodge on 07.12.2004. Further as the nude photographs of the appellant Sarojini Giri saw the light of the day after exposure by the Investigating Officer, it cannot also be held that for the conduct of exposing nude photographs of the appellant Sarojini Giri, she (appellant) had nurtured a motive to kill the deceased. Another feature which arouse suspension is the factum of handing over of the camera containing intimate photographs of the appellant, a lady with whom the deceased had illicit relationship to a person like P.W.6. There was no point for the deceased to handover the camera containing nude photographs of appellant Sarojini Giri to P.W.6, which P.W.6 produced before the police after the death of the deceased. Though there is no relevant evidence on the point, the Investigating Officer during investigation came to knot as deposed before the court that appellant Sarojini Giri was the first wife of the accused Nandalal Sahu (since acquitted), who had married to another lady of Baharguda. In such situation appellant Sarojini Giri might be having intimate relationship with deceased and some others also and being envious of the relationship of the appellant with the deceased who is stated to be a harden criminal, some other unrequited lover of the appellant or husband of the appellant might have killed the deceased. We are constrained to take such a view especially in view of the fact that, there is nothing on record to prove that there was some dissension between the deceased and appellant Sarojini Giri or the deceased at any point of time exploited such relationship. It might have so happened also that P.W.6 being in love with appellant Sarojini Giri might have committed the crime and he (P.W.6), who had exposed the nude photographs 8 of Sarojini Giri produced the camera before the Investigating Officer to misdirect the investigation after committing the murder of the deceased himself finding him falling behind the appellant Sarojini Giri and apprehending danger to both himself and appellant Sarojini Giri as the deceased was a criminal. In view of such fact, from the nude photographs of appellant Sarojini Giri and booking of a room in the name of one Ajay Das and Seema (nonexistent persons) by P.W.6 stated to be at the behest of the deceased, it cannot be held that the deceased and appellant Sarojini Giri had illicit relationship and as the deceased had taken nude photographs of Sarojini Giri, Sarojini Giri killed him.

12. Chemical Examination Report proves the existence of human blood of group “B”. on earth scrappings and two strands of hairs seized from the house of the appellant Sarojini Giri. There are also presence of human blood in the Panikhi and some more earth scrappings collected from the house of appellant Sarojini Giri. There is, however, no evidence as to what is the blood grouping of appellant Sarojini Giri. Another feature of the prosecution case is that appellant Sarojini Giri was found to have sustained about six injuries and learned Trial Court has taken those injuries to be the outcome of tussle in course of commission of murder of the deceased by her and some others. We are unable to endorse to this view of learned trial court. The Investigating Officer in specific term has testified that the deceased was a hardened criminal under Jharpokhoria P.S. The appellant Sarojini Giri alone therefore could not have committed the murder. This might have so happened that either finding another person in compromising position with appellant Sarojini Giri in her house the deceased mounted the assault to be killed by that another person in counter assault or finding the deceased in compromising position with appellant Sarojini Giri, her husband assaulted the 9 appellant provoking the deceased to attack in counter and to be killed by defence attack or finding the deceased in compromising position with appellant, another person in intimate relationship with the deceased might have attacked both to kill the deceased whose dead body might have been thrown later on by help of appellant Sarojini Giri. In view of such gap in the circumstances, the finding of certain bloodstained articles or earth scrappings from the spot house does not become incriminating so far as the substantive charge of murder against the appellant is concerned.

13. From the above discussion, the prosecution can be held to have proved the following circumstances:I. The deceased was last seen at about 8.30 P.M. near Baripada-Kolkata bus on 16.12.2004 and the present appellant was also seen near that area. II. Some nude photographs of the appellant were captured by somebody in a camera seized by the police on production by P.W.6. III. Some bloodstained articles like earth scrappings, two strand of hairs, etc. out of which some were stained with human blood of group ‘B’ were seized from the house of the appellant Sarojini Giri.

14. Taking into consideration the entire evidence in their totality, it is difficult to draw an inference unerringly pointing at the guilt of the appellant alone. We are, therefore, constrained to hold that prosecution has failed to prove the circumstances as placed by it and the appellant is entitled to the benefit of doubt.

15. In the result, the impugned judgment and order of sentence are set aside. The appeal is allowed. The appellant be released from custody forthwith, if her detention is not required in any other case”

16. The nude photographs proved in this case along with negatives be sealed forthwith by the office. …………………… C.R. Dash, J.L. Mohapatra, J.I agree. ……………………… L. Mohapatra, J.Orissa High Court, Cuttack. The 16th day of August, 2012/Dhal.