The High Court · 2004
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.19 of 2008 An appeal under section 374 Cr.P.C. from the judgment and order dated 30.01.2008 passed by the Additional Sessions Judge, Nayagarh in S.T. Case No.20 of 2005. --------------------- 1. Purastam Pradhan 2. Karna Pradhan ....... Appellants -Versus- State of Odisha ....... Respondent For Appellant: - Ms.Bijay Laxmi Tripathy Amicus Curiae For Respondent: - Mr. Sonak Mishra Addl. Standing Counsel --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH ----------------------------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 03.11.2023 ----------------------------------------------------------------------------------------------------------------------- By the Bench: The two appellants Purastam Pradhan and Karna Pradhan are brothers and they faced trial in the Court of learned // 2 // Additional Sessions Judge, Nayagarh in S.T. Case No.20 of 2005 for commission of offences under sections 449, 302 read with section 34 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that on 3rd August 2004 at about 3.00 p.m. at Ganikumpa (Kerabari), they committed house trespass by entering into the house of the informant Bikram Pradhan (P.W.2) used as a human dwelling in order to commit murder of his younger brother Rabi Pradhan (hereafter ‘the deceased’) and also committed murder of the deceased. The learned trial Court vide impugned judgment and order dated 30.01.2008 found both the appellants guilty under the offences charged and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for one year under section 302/34 of the I.P.C. and to undergo R.I. for three years and to pay a fine of Rs.3,000/- (rupees three thousand), in default, to undergo further R.I. for six months under section 449/34 of the I.P.C. and both the sentences were directed to run concurrently. Prosecution Case: The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by Bikram Pradhan (P.W.2) Page 2 of 27 // 3 // before the Officer in-charge of Dasapalla police station on 04.08.2004, is that on 03.08.2004 in the afternoon at about 3 O’ clock while the deceased, who was his younger brother, was sleeping in the house, both the appellants entered into the bed room of the deceased being armed with ‘barisi’ and ‘tangia’ and committed murder by assaulting on the neck, chest and abdomen portion of the deceased and left the spot leaving one tangia at the scene of occurrence. The father of the informant sent him to intimate the incident to one Prasanna Behera. It is further stated in the F.I.R. that there was a quarrel between the appellants and the deceased relating to collection of paddy crops and on account of such quarrel, murder was committed. On 03.08.2004, P.W.15 Subhash Chandra Mohanty, the Officer in-charge of Dasapalla police station at about 8.00 p.m. received a telephonic information from one Prasanna Behera of Hanumantia about the murder of the deceased and accordingly, he entered the fact in Dasapalla P.S. Station Diary Entry No.57 and proceeded to the spot at about 9.00 p.m. and arrived there at about 11.00 p.m. and on his arrival at the spot, he found the dead body of the deceased lying on a charpouy (DAUDIA KHATA) with a pool of blood on the ground and axe stained with blood was lying near the dead body on the ground. Page 3 of 27 // 4 // He also noticed cut injuries on the right neck, right chest, right side belly and he guarded the spot through his staff and at about 11.45 p.m., P.W.2 presented the written report before him at the spot and accordingly, on the basis of such report, the J.S.I. Dasarathi Naik registered Dasapalla P.S. Case No. 81 dated 04.08.2004 under sections 449, 302/34 of the I.P.C. against the appellants and took up investigation of the case. During the course of investigation, the photographs of the spot was taken when the I.O. visited the spot on 04.08.2004 and he also prepared the spot map (Ext.14), held inquest over the dead body, prepared the inquest report (Ext.2), seized the blood stained earth, sample earth, blood stained axe with handle and prepared the seizure list as per Ext.3 and sent the dead body for post mortem examination to Dasapalla hospital. He also seized the wearing apparels of the deceased and the command certificate produced by the escorting constable after return from the post mortem examination. On receipt of the telephonic message from the Circle Inspector of Police, Boudh that the appellants have surrendered at Harabhanga police station on 04.08.2004 with the axe after confessing their guilt, he made station diary entry and left for Harabhanga police station at about 8.30 p.m. and on reaching Harabhanga police Page 4 of 27 // 5 // station, he found both the appellants detained there with the weapon of offence and at about 9.15 p.m., the I.O. arrested both the appellants and on the very day, he seized the handle of an axe and iron portion of axe kept separately on production by the appellant Purastam Pradhan as per seizure list (Ext.13). On 05.08.2004, the I.O. seized the wearing apparels of both the appellants at Dasapalla after bringing them from Harabhanga police station in the previous night as per seizure list Ext.5. On the same day, he sent the appellants to Dasapalla Hospital for collection of nail clippings and also sent the weapon of offence i.e. the handle and the iron portion of the axe seized at Harabhanga for opinion of the doctor and subsequently seized the nail clippings from the accompanying constable as per seizure list Ext.9 and forwarded both the appellants to Court. On 12.08.2004, the I.O. made a prayer to J.M.F.C., Dasapalla for sending the exhibits to S.F.S.L., Rasulgarh for chemical examination and on 10.08.2004, he received the post mortem report, the photographs, seized the station diary book of Harabhanga police station as per seizure list Ext.18 and released the same in the zima of A.S.I. of Police as per zimanama Ext.19 and on completion of investigation, he submitted charge sheet against the appellants on 11.12.2004. Page 5 of 27 // 6 // Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court framed the charges as aforesaid against the appellants and since the appellants pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses & Documents Exhibited By Prosecution: 4. During the course of trial, in order to prove its case, the prosecution has examined as many as fifteen witnesses. P.W.1 Panchanan Pradhan is the father of the deceased. He stated that while he was at his ‘Salaghar’, which is 100 yards away from his house where the deceased was sleeping, he heard a shout from the ‘Salaghar’ and came to the spot and found both the appellants were near the door of his house and he heard them saying that if anybody comes, they would assault them. He also stated that at that time, the appellant no.1 Purastam Pradhan was holding an axe stained with blood. Page 6 of 27 // 7 // P.W.2 Bikram Pradhan is the informant in the case. He stated about the land dispute between the appellants and the deceased and he is a post occurrence witness. P.W.3 Kabi Naik, who is a Ward Member of the village, is a witness to the inquest report (Ext.2). P.W.4 Aruna Jani was the Sarpanch of Chadeyapalli Gram Panchayat and he stated that on the request made by P.W.2, he scribed the F.I.R. He is a witness to the seizure of blood stained axe, sample earth and blood stained earth from the spot as per seizure list Ext.3 and wearing apparels of the deceased and also the axe as per M.O.I & M.O. II respectively. P.W.5 Chhabi Naik is a co-villager of P.W.2 as well as the deceased. He stated that he along with P.W.6 went to the house of P.W.1 and found the deceased lying dead after being assaulted and his throat was cut. He also stated that he found both the appellants going away from their backside when P.W.1 shouted. P.W.6 Kapitan @ Kaptan Mallik has stated that on the date of occurrence, he had been to the ‘Salaghar’ of P.W.1 and on hearing the hulla, he along with P.W.5 went there and found the dead body of the deceased lying on a cot and an axe was Page 7 of 27 // 8 // lying there with blood stains. He further stated that the appellants were going away from the house of P.W.1. P.W.7 Angada Naik is the Gramarakshi of the village who stated that on being informed by P.W.1, he had been to his house and found the dead body of the deceased lying dead with cut injuries near throat, chest and belly an axe was lying near the spot. He is a witness to the seizure of wearing apparels of the deceased as well as command certificate as per seizure list Ext.4. He is also a witness to the seizure of wearing apparels of the appellants as per seizure list Ext.5. P.W.8 Dinabandhu Jani, who is a co-villager of both the appellants and the deceased, is a witness to the inquest report as per Ext.2 and also the seizure of blood stained earth, sample earth and the axe lying at the spot as per seizure list Ext.3. P.W.9 Dr. Pradip Kumar Das, who was attached as Paediatrics Specialist at Area Hospital, Dasapalla, conducted post mortem over the dead body of the deceased and proved his report as per Ext.6 and his opinion vide Ext.7. P.W.10 Rama Chandra Naik, who is a native of the neighbouring village, on hearing the news from P.W.1, had been to the house of P.W.1 and found the dead body of the deceased Page 8 of 27 // 9 // lying dead with cut injuries. He accompanied the dead body of the deceased for post mortem examination and he is a witness to the seizure of wearing apparels of the deceased after the post mortem examination as per seizure list Ext.4. P.W.11 Aswini Sankar Khatei is the photographer and he proved the photographs along with negatives marked as Exts.10, Exts.11 to 11/3. P.W.12 Yudhisthira Behera was the Officer in-charge of Harabhanga police station. He stated that on receipt of information regarding surrender of the appellants in the police station, he intimated the said fact to Officer in-charge of Dasapalla police station. He also stated that he found an axe with them which was separated from the handle and their wearing apparels were stained with blood. He proved the station diary entry as per Ext.12. P.W.13 Raj Kishore Jally was the constable attached to Harabhanga police station. He stated that the appellants confessed before P.W.14 regarding the commission of murder of the deceased and confined them in custody. He also stated that they were carrying an axe. P.W.14 Hazari Naik was the constable attached to Harabhanga police station. He stated that both the appellants Page 9 of 27 // 10 // arrived at the police station with an axe and their wearing apparels were stained with blood and confessed before him regarding the commission of murder of the deceased and he confined them in custody. He proved the station diary entry no.63 dated 04.08.2004 as per seizure list Ext.12. He is also a witness to the seizure of axe Ext.13. P.W.15 Subhash Chandra Mohanty was the Officer in- charge of Dasapalla police station, who is the Investigating Officer of the case. The prosecution exhibited twenty documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3, Ext.4, Ext.5, Ext.9, Ext.13 and Ext.18 are the seizure lists, Ext.6 is the post mortem report, Ext.7 is the opinion of the doctor on examination of the weapon of offence, Ext.8 is the letter of the I.O. for collection of nail clippings of the appellants, Exts.10 to 10/3 are the photographs, Ext.11 to Ext.11/3 are the negatives, Ext.12 is the relevant entry of page no.447671, Ext.14 is the spot map, Ext.15 is the dead body challan, Ext.16 is the command certificate, Ext.17 is the copy of the forwarding letter for sending the seized exhibits to S.F.S.L., Ext.19 is the zimanama and Ext.20 is the chemical examination report. Page 10 of 27 // 11 // Six nos. of material objects were admitted in evidence. M.O. I is the tangia/axe, M.O.II is the lungi, M.O.III is the tangia/axe, M.O. IV is the handle of seized axe, M.O.V is the seized lungi of the appellant no.2, M.O.VI is the seized pant of the appellant no.1 and M.O.VII is the shirt of the appellant. Defence Plea: 5. The defence plea of the appellants is one of denial. The defence has neither examined any witness nor exhibited any document.
Legal Reasoning
Findings of the Trial Court: 6. The learned trial Court, after assessing the oral as well as documentary evidence on record, came to hold that from the evidence of P.W.9 and the post mortem report (Ext.6), it is proved that the death of the deceased was caused instantaneously due to stoppage of respiration and haemorrhage and the death is homicidal in nature. The learned trial Court further held that from the evidence of P.W.1, P.W.5 and P.W.6, it is clearly established that soon after departure of P.W.1, they found the dead body of the deceased lying on the cot with injuries having profuse bleeding. It is further held that from the evidence of P.W.1, P.W.5 and P.W.6, it is clearly established that soon after the occurrence, they reached the spot and found the Page 11 of 27 // 12 // deceased lying on a cot and the appellants leaving the spot and from the evidence of P.W.1, it is clearly established that by that time, the appellant no.1 Purastam Pradhan was holding a tangia stained with blood. The learned trial Court further held that from the evidence of P.W.12, P.W.13, P.W.14 and P.W.15, it is proved that soon after the occurrence, both the appellants fled away from the spot and surrendered at Harabhanga police station and gave their identity before P.W.14 and informed about their involvement in the occurrence. It was further held that the confession made by the appellants in the case before the Harabhanga police station, even if it is not admissible in evidence, their surrendering along with production of weapon of assault suggests the inference that they have committed the crime. The learned trial Court further held that from the chemical examination report, Ext.20, it is established that the axe with which the deceased was assaulted, contained human blood of ‘O’ group and concluded that the appellants caused the murder of the deceased after assaulting him by means of an axe on different parts of the body after committing house trespass to his dwelling house and accordingly, the prosecution well established the charges against the appellants under sections 449, 302/34 of the I.P.C. Page 12 of 27 // 13 // Contentions of the Parties: 7.
Legal Reasoning
Ms. Bijaya Laxmi Tripathy, learned counsel appearing for the appellant contended that there is no direct evidence in the case and the case is based on circumstantial evidence and the circumstances proved by the prosecution are not clinching and they do not form a complete chain so as to come to an irresistible conclusion that it is the appellants and none else, who have committed the murder of the deceased. Learned counsel further argued that merely because the appellants were seen fleeing away from near the spot and at a later stage, they surrendered at Harabhanga police station with one axe cannot itself be a ground to convict the appellants. Learned counsel further argued that even though P.W.1 has stated to have seen the appellant no.1 Purastam Pradhan to be holding one axe, but P.W.5 and P.W.6 who accompanied P.W.1 to the scene of occurrence have not stated to have seen any weapon in the hands of appellant no.1. Learned counsel further argued that even though the appellants stated to have confessed before P.W.14 regarding commission of crime at Harabhanga police station, in view of the bar under section 25 of the Evidence Act, such confessional statement is not admissible and though the axe was stated to have been produced by the appellants at Page 13 of 27 // 14 // Harabhanga police station, but when it was sent for chemical analysis, no human blood was detected on it and moreover, no link could be established between the weapon seized at Harabhanga police station from the possession of the appellants with the commission of murder inasmuch as P.W.1 has not identified the axe to have been in the hands of appellant no.1. Learned counsel further submitted that in view of the available materials on record, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Sonak Mishra, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and argued that there was dispute between the appellants and the deceased, which would be evident from the evidence of P.W.1 and P.W.2 and the prosecution also established that the deceased met with a homicidal death. He argued that the appellants were seen leaving the spot and P.W.1 has seen the appellant holding an axe at that point of time and at the spot, the dead body was lying with multiple injuries and another axe was lying there. Learned counsel further argued that even if the confessional statement stated to have been made by the appellants before P.W.14 at Harabhanga police station is taken out of consideration, still the Page 14 of 27 // 15 // conduct of the appellants in producing the axe before the police is admissible in evidence under section 8 of the Evidence Act and therefore, the chain of circumstances is complete and there is no infirmity in the impugned judgment and accordingly, the appeal should be dismissed. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let we first examine whether the prosecution has successfully proved that the deceased met with a homicidal death or not. The dead body was sent for post mortem examination on 04.08.2004 to Area Hospital, Dasapalla where P.W.9 conducted post mortem examination and noticed the following injuries. ‘(1) Chop wound of size 3”x5”x2” present on the middle of neck transversely 2” above the supra sterna knautch, transversely present cutting skin, muscles, all major vessels of the neck trachea, esophagus, 4th servical vertibra and back muscles. (2) Chop wound of size 3”x2”x3” present obliquely on anterior chest of right side 2: below right nipple cutting skin, chest muscles, 5th and 6th ribs diaphragm and right side liver. Page 15 of 27 // 16 // (3) Chop wound of size 3”x2”x4” present 1: median and below the wound no.2 cutting skin, muscles, peritoneum and stomach exposing undigested rice particles and left side of liver. (4) Incised wound of size 1½”x½”x½” present obliquely on middle of chin.’ The doctor further opined that the injuries are ante mortem in nature and except injury no.4, all the injuries are grievous in nature and injury no.1 caused immediate death due to stoppage of respiration and he further opined that all the injuries were caused by the sharp cutting heavy weapon and the cause of death was due to stoppage of respiration and haemorrhage. The doctor also examined the two axes which were sent by the I.O. by making a query regarding possibilities of the injuries sustained by the deceased with such weapons and after examining the same, the doctor (P.W.9) opined in affirmative and stated that the injuries found on the body of the deceased are possible by such weapons and the post mortem report has been marked as Ext.6 and the opinion report has been marked as Ext.7 and nothing has been brought out in cross-examination of the doctor and no challenge has also been made by the learned counsel for the appellants to the nature of death of the deceased. In view of the available materials on Page 16 of 27 // 17 // record, we find that the learned trial Court has rightly come to the conclusion that the death of the deceased is homicidal in nature. Analysis of evidence: 9. Coming to the dispute between the appellants and the deceased, the evidence of two witnesses i.e. P.W.1 and P.W.2 are relevant. P.W.1 has stated that on the date of incident, his deceased son had gone to the land of the appellants to cultivate on bhag basis, but he was restrained by the appellants, for which he came back whereas P.W.2, who is the brother of the deceased, has stated that in the morning of the date of occurrence, the deceased went to cultivate the land of Jamuna Pradhan and the appellant no.1 since they requested him to cultivate the same on bhag basis. Since there was a dispute in the family of the appellants, on hearing the fact, he (P.W.2) went to the deceased and restrained him not to cultivate the land of appellant no.1 for which the deceased cultivated their land. Therefore, the evidence of P.W.1 and P.W.2 on this aspect is completely contrary to each other. Though P.W.1 has stated that the appellants restrained the deceased from the cultivation work, but the evidence of P.W.2 rather indicates that it is he who restrained the deceased from cultivating the land as there was a Page 17 of 27 // 18 // dispute in the family of the appellants. From the evidence of these two witnesses, i.e. P.W.1 and P.W.2, it is difficult to accept that there was any such dispute between the appellants and the deceased prior to the occurrence for formation of motive behind the commission of the crime. Coming to the evidence of P.W.1, P.W.5 and P.W.6, who have stated to have seen the appellants leaving the spot, it appears from the evidence of P.W.1 that at the time of occurrence, he was at his ‘Salaghar’, which was 100 yards away from his house where the deceased was sleeping and on hearing the shout, he (P.W.1) came to the spot along with P.W.5 and P.W.6 and found both the appellants near the door of his house and they were saying ‘AAU KIE ASUCHA ASA HANIDEBU’ i.e to cause assault if anybody would come and the appellant no.1 was holding an axe stained with blood and out of fear, he could not detain them for which they went away. P.W.1 further stated that when they entered into the room, they found the deceased was lying dead on a cot being assaulted on his belly, chest and neck and the neck was half cut and one tangia was lying there with blood stains and there was blood stains throughout the room. In cross-examination, however, he has stated that he found the appellants standing in front of the house on danda from his Page 18 of 27 // 19 // ‘Salaghar’ and he heard the appellants saying ‘KIE ASUCHA ASA’ and found the appellant no.1 was wearing a lungi at that time. He further stated that when he along with P.W.5 and P.W.6 reached at the spot, both the appellants fled away and from a distance of 50 yards, he saw the appellants fleeing away. It has been controverted to P.W.1 and proved through I.O. (P.W.15) that he has not stated in his 161 Cr.P.C. statement that he saw the appellants near the door but stated that he saw the appellants in the court yard. The other two witnesses i.e. P.W.5 and P.W.6, who according to P.W.1 accompanied with him, have stated in a different manner. P.W.5 has stated that on the date of occurrence, he had gone to the ‘Salaghar’ of P.W.1 and P.W.6 was also present there and at about 2.00 p.m., the occurrence took place and P.W.1 went to his house and saw the deceased lying dead and then, he himself and P.W.6 went to the house of P.W.1 and found the deceased lying dead after being assaulted and he further stated that he found both the appellants going away from their backside when P.W.1 shouted. Thus, P.W.5’s evidence is silent to have seen any weapon in the hand of appellant no.1 Purastam Pradhan. P.W.6 has stated that he along with P.W.5 were present in the Sala of P.W.1 and they heard a hulla ‘HANIDELE HANIDELE’. Like P.W.5, P.W.6 is also Page 19 of 27 // 20 // silent regarding availability of an axe in the hand of appellant no.1. On a conjoint reading of the evidence of P.W.1, P.W.5 and P.W.6, we find that though all the three have stated to have seen the appellants leaving from the court yard of the house of P.W.1, but the axe noticed by P.W.1 in the hands of the appellant no. 1 is not getting corroboration from the evidence of either P.W.5 or P.W.6 or the utterance stated to have been made by the appellants. The next evidence available against the appellants is the evidence of P.W.14 Hazari Naik, the constable attached to Harabhanga police station and he has stated that on 04.08.2004 at about 4.00 p.m., two persons arrived at the police station with an axe and confessed before him that they committed murder of a person and requested him to save them and on his interrogation, they expressed that out of fear, they have come to a distant place. P.W.14 further stated that he detained them and intimated Badababu over VHF, who directed him to detain them in custody till his arrival and those two persons were wearing lungi and gamuchha and their wearing apparels were stained with blood and the axe was separated from the iron portion. He further stated that on the same day at about 7.30 p.m., Badababu Yudhistir Behera (P.W.12) arrived at the police station Page 20 of 27 // 21 // and at 9.00 p.m., P.W.15 reached there and seized the axe along with handle at about 9.30 p.m. The axe was marked as M.O.III as per the evidence of P.W.14. Though P.W.14 has not stated that those two persons were the appellants standing in the dock, but the learned defence counsel has brought out in the cross- examination that the appellant no.2 Karna Pradhan was holding an axe when he appeared at Harabhanga police station and in the cross-examination, it has also been elicited that he kept the appellants inside hazat. Section 137 of the Evidence Act says that the examination of a witness by the adverse party shall be called his ‘cross-examination’. Cross-examination is very aptly described as an ‘art’ which is required to be learnt assiduously, practised diligently and to be executed even more cautiously. The importance of this skill can never be overstated considering the history of criminal trials. Acquiring the skill to maintain meaningful silence is much more vital than to speak up and put superfluous questions to witnesses. P.W.13, who is another constable attached to Harabhanga police station, stated that the appellants came to the police station and told to P.W.14 regarding the commission of murder of their brother and one axe was recovered from Page 21 of 27 // 22 // them, which was kept in the police station. However, in the cross-examination, he has stated that at about 2.10 p.m., when he reached at the police station by that time the appellants were in the hazat and the axe was kept in the room of the Officer in- charge. If according to P.W.14, two persons arrived at the Harabhanga police station at 4.00 p.m. whereafter they were detained in hazat and the axe was kept in the room of the O.I.C., Harabhanga police station, the evidence of P.W.13 when he reached the police station at about 02.10 p.m., the accused persons were in the hazat and the tangia was kept in the room of the O.I.C. is somehow discrepant. Be that as it may, the confessional statement made by the appellants before P.W.14 has been rightly taken out of consideration by the learned trial Court being hit by section 25 of the Evidence Act. Even though the axe and the wearing apparels of the appellants were seized and sent for chemical analysis, but the chemical examination report, which has been marked as Ext.20, indicates that blood stains could not be detected either on the wearing apparels of the appellants or on the tangia. P.W.1 who has stated to have noticed the appellant no.1 to be holding a tangia while leaving the spot has not identified M.O.III to be that particular tangia. In fact, he has stated in his cross-examination that he did not Page 22 of 27 // 23 // witness that particular tangia in the Court. It was the duty of the public prosecutor to show M.O.III to P.W.1 for the purpose of identification. Therefore, no link has been established that the tangia which was stated to be in the hands of appellant no.1 as stated by P.W.1 was the same tangia which was produced before the Harabhanga police station on 04.08.2004 and moreover, since no blood stain was found on the tangia as per the C.E. report, its seizure from the appellants is no way relevant for establishing the guilt of the appellants. Even if the conduct of the appellants in producing the tangia is held to be admissible under section 8 of the Evidence Act but unless the tangia seized is proved to be the weapon of offence, its seizure is no way helpful to the prosecution in proving its case. In the oft-quoted decision of the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in (1984) 4 Supreme Court Cases 116, the principles relating to appreciation of the case based on circumstantial evidence has been discussed and the five golden principles of panchsheel has been laid down which are as follows: “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; Page 23 of 27 // 24 // 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 2. The circumstances should be of a conclusive nature and tendency; 3. They should exclude every possible hypothesis except the one to be proved; 4. There must be a chain of circumstances 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.” It is settled principles of law that circumstance concerned ‘must’ or ‘should be’ and not ‘may be’ established and circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established. In the case of Hanumant Govind Nargundkar and another -Vrs.- State of Madhya Pradesh, reported in (1952) 2 Supreme Court Cases 343, it has been held that in dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind and in such cases, there is always a danger that conjecture or suspicion may take the place of legal proof. Their Page 24 of 27 // 25 // Lordships relied upon the decision in the case of Reg -Vrs.- Hodge reported in (1838) 2 Lew. 227 wherein it is said that the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. Conclusion: 10. In the case in hand, even if it is accepted as per the evidence on record that the appellants were seen leaving from the spot from a distance and that the appellant no.1 was holding an axe and on the very day, one axe was produced at Harabhanga police station by the appellants, in absence of any other evidence, it is very difficult to come to the conclusion that the chain of circumstances is complete and that circumstances taken together unerringly point towards the guilt of the appellants. There are missing links in the chain of circumstances and therefore, we are of the humble view that the learned trial Court was not justified in convicting the appellants on the basis Page 25 of 27 // 26 // of such circumstantial evidence for the offences under sections 449, 302/34 of the I.P.C. Accordingly, the impugned judgment and order of conviction passed by the learned trial Court is hereby set aside. The appellants are acquitted of the charges under sections 449, 302/34 of the I.P.C. The Jail Criminal Appeal is allowed. It appears that appellant no.1 Purastam Pradhan has been released on bail by this Court vide order dated 19.12.2018 passed in I.A. No.87 of 2018. The bail bonds and surety bonds furnished by the appellant no.1 stand cancelled. It further appears from the letter dated 29.10.2023 of the Inspector in- charge of Dasapalla police station produced by the learned counsel for the State that appellant no.2 Karna Pradhan has been released from Circle Jail, Choudwar as per order No. 6152/L. dated 07.07.2022 of the Department of Law, Government of Odisha. Before parting with the case, we would like to put on record our appreciation to Ms. B.L. Tripathy, the learned Advocate for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Page 26 of 27 // 27 // Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Sonak Mishra, learned Additional Standing Counsel. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. .......................... S.K. Sahoo, J. ................................. Chittaranjan Dash, J. Orissa High Court, Cuttack The 3rd November 2023/PKSahoo Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 10-Nov-2023 15:20:06 Page 27 of 27