The story begins with a silly infatuation that led our protagonists to elope to the peaceful village of Dadikaju where they lived together. Bibachha Dingal (the accused) and Ambika Behera (the deceased) were both labourers, their love for each other didn’t put enough food on the table so to augment their income they moved to a rented house in Phulbani.
This is where the story takes a dark turn. In Phulbani, Bibachha suddenly and unfoundedly believes that his beloved Ambika is a harlot. He begins to physically abuse her and create a ruckus on a daily basis. This takes place for a while and thereafter they decided to go back to Dadikaju. Upon reaching the village, Ambika leaves Bibachha and returns to her own village, where she lodges an oral complaint against him before the Women commission regarding the assault she faced earlier. The Women Commission is sympathetic to her plight and they initiate action against Bibachha by convening a meeting. In the meeting, Ambika reveals that Bibachha has taken another wife – Banita and that she was opposed to such a bigamous union. However, Bibachha assures everyone present that he loved Ambika and would take good care of her. The Commission decides to give him another chance and Ambika’s family take her to Bibachha’s house and leave her there.
Until this point, all the facts are accepted by both sides of the party. But, now onwards, everything is a tangle of lies and truths. We will have a hard time (just like the judges) deciding which side to believe. The storyline we follow now is the prosecution’s (Counsel of the State’s) version –
A fortnight later, Ambika’s family sent a relative to enquire about their daughter either because they wanted to know about her welfare or because they got wind of a rumour that Ambika was missing. Ambika’s aunt goes to Bibachha’s house and gets to know that the couple could not be found in the village and they had been out for 08-10 days. The family rushes over to Dadikaju and upon further inquiry, they are informed that Ambika was murdered. A villager guides them to a bridge where they spot a saaya (petticoat) and a sweater near a skull. Ambika’s father immediately lodges an FIR in the police station naming Bibachha Dingal and Banita Dingal as the accused. The Officer-in-charge at the Police Station – Rajendranath Reddy examines Ambika’s father as the informant and sends a request to the Superintendent for deputation of a scientific team and photographer to the location.
At 09.40 AM the next day, investigation at the crime scene began and around 10.10 AM the Investigation officer received information that Bibachha was in another village. He was apprehended at the bus stand and formally arrested at 11.00 AM. Bibachha was examined in police custody, where he confessed to the crime and disclosed the place where he had buried Ambika’s dead body. (Remember, in India confession before the police doesn’t hold water. Only in certain exceptional cases can such a confession can be proved in the court.) This statement from him leads to the discovery of Shawl, which is claimed to be the weapon of offence and a spade from his house. Bibachha further led the police and some other eye witness to the place where the body was buried. Upon digging for some depth, saaya, saree and blouse were recovered. On the same day, the investigating officer searched the area and found skull, bones and ribs, these were sent for further scientific and forensic examination.
In early 2007, the case is registered in the trial court where both Bibachha and his wife Banita are named as accused. They plead innocence and deny the charges. The prosecution tenders 11 witnesses and 13 documentary evidence while the defence presents neither witnesses nor any documents. The trial judge relies on the prosecution evidence and convicts Bibachha sentencing him to life imprisonment but acquits his wife.
Bibachha prefers an appeal on 11.08.2008 and this is where we examine the contentions of the counsels closely –
The counsel for the accused – Pulakesh Mohanty narrates the story from the point of Ambika’s return to Bibachha’s house after the meeting different. He reiterates that Ambika was a woman of loose morals and that she had, in fact, left his client’s house on her own but on her way, someone murdered her and now Bibachha was being falsely implicated. Further, he rests his case on three major grounds – medical report, prosecution witness, investigation procedure.
- Medical report: the counsel argued that according to the medical report it could not be said that the bones belonged to Ambika. Furthermore, no traces of bloodstains could be found on the spade or the clothes recovered making it look like they were planted by someone else. And the presence of Spade was not unusual since Bibachha was a labourer and it was a tool he required on a daily basis.
- Prosecution witnesses: After cross-examination, the counsel stated that the statement of the prosecution witnesses was inconsistent and therefore they were unworthy of credence.
- Investigation procedure: he has also said that the investigation was sloppy, sluggish and that Bibachha had made no confession before the police, thereby implying that the confession was the investigation officer’s figment of the imagination.
The counsel for State L. Samantaray attacked all the pointsand structured his arguments on the following grounds –
- Motive to kill: the prosecution emphasized that Ambika’s family had no motive to falsely implicate Bibachha but he, on the other hand, had a motive to kill since he was in a Bigamous marriage and Ambika was an obstacle.
- Suspicious conduct by the accused: He also questioned the defence counsel’s theory stating that if indeed Ambika had run away from her house, why didn’t Bibachha look for her? Furthermore, it was his duty to explain what happened to her once she went missing. Also, there was no reasonable explanation as to why he was absconding when her body was found.
- Medical report: He stated that the scientific examination concluded that the skull belonged to Ambika and while it was true that the bones could not be identified as hers, it was identified as those belonging to the skull.
After hearing both sides of the court, the judges made the following observations –
- The presence of motive to kill is confirmed as the feud between Ambika and Bibachha due to suspicions on her chastity or due to the bigamous marriage but motive cannot establish a crime
- Attires that were recovered on spot was neither brought as material evidence in appellate court nor was it identified by Ambika’s family as belonging to her. So, the prosecution failed to connect recovered articles with the deceased.
- They further placed reliance on trial judge order that –
- The dead body of the deceased could not be recovered
- Saya and sweater recovered were already near nala (drain) so, the theory that they were dug out does not inspire confidence. Furthermore, skull and bones were scattered near the nala which logically has only one explanation that the body was dragged and eaten by the wild animals but this implies that garment attached must also come out and therefore there is no possibility of finding it through digging.
- Recovery of the spade in possession without connection to the circumstance (since there was no bloodstain on it) cannot be incriminating and since Bibachha is by profession a labourer so it is not abnormal that he had a spade.
- While the conduct of Bibachha, while he is absconding, is incriminating but that is not in itself sufficient to hold the appellant guilty of murder
THEREFORE, THE ORISSA HIGH COURT ACQUITTED BIBACHHA DIGAL
Citation: [2017 (169) AIC 665 (ORI. HC)]