The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.46 of 2008 An appeal from the judgment and order dated 20.02.2008 passed by the Sessions Judge, Keonjhar in Sessions Trial No. 119 of 2007. --------------------- Samara Mahakud ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Bikash Chandra Parija Advocate For Respondent: - Mr. Jateswar Nayak Addl. Govt. Advocate --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------- Date of Hearing: 21.11.2024 Date of Judgment: 28.11.2024 --------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Samara Mahakud faced trial in the Court of learned Sessions Judge, Keonjhar in Sessions Trial No. 119 of 2007 for the offences punishable under sections 302/364/201 of the Indian Penal Code (hereinafter ‘I.P.C.’) on JCRLA No.46 of 2008 Page 1 of 33 the accusation that on 13.02.2007 in the afternoon at Khajurimundi, the appellant kidnapped Guru Mahakud (hereinafter ‘the deceased’) and committed his murder by intentionally causing his death and thereafter, threw his dead body inside the jungle with an intention to screen himself from legal punishment. The learned trial Court vide judgment and order dated 20.02.2008 found the appellant guilty under sections 302/364/201 of the I.P.C. and sentenced him to undergo imprisonment for life for commission of offence under section 302, I.P.C., R.I. for ten years for the offence under section 364 of the I.P.C. and to undergo R.I. for five years under section 201 of the I.P.C. Prosecution Case: 2. The prosecution case, as per the first information report (for short, ‘F.I.R.’) (Ext.8) lodged by Sabitri Mahakud (P.W.1) before P.W.7 Ajit Kumar Swain, the Officer-in-Charge (O.I.C.) of Sadar Police Station, Keonjhar, in short, is that on 13.02.2007 during afternoon around 4.00 p.m., the deceased who was her seven years old son, told her that the appellant had asked him to accompany him to eat ‘kendu’ and without paying any heed, the deceased proceeded with the appellant on his JCRLA No.46 of 2008 Page 2 of 33 bicycle. Around the evening, the appellant came back alone on his bicycle without the deceased. When P.W.1 asked the appellant about the whereabouts of the deceased, the appellant told her that the deceased had not gone with him. Thereafter, P.W.1 went inside the village and searched for the deceased, but without getting any trace of him, she informed to her co-villagers and the ex-member of the village. On 14.02.2007, some of her co-villagers went out in search of the deceased and around 11.00 a.m., she was informed that the deceased had been murdered and was lying two kilometers away from village at Sianal jungle and his neck had been cut. On hearing the same, she sent for her younger brother Indramani Mahakud and informed her husband. Since there was delay in arrival of her husband, she along with Indramani went to Saukati police out- post. While P.W.7 was camped at Saukati out-post, he received the written report from the informant (P.W.1) and finding a cognizable case to have been made out, he treated it as an F.I.R. and registered Keonjhar Sadar P.S. Case No. 24 of 2007 and took up investigation of the case. P.W.7 himself took up investigation. During the course of investigation, he visited the spot, examined the informant (P.W.1) and other witnesses and recorded their JCRLA No.46 of 2008 Page 3 of 33 statements. P.W.7 prepared the spot map (Ext.9), seized some blood stained earth and sample earth as per seizure list Ext.4, held inquest over the dead body of the deceased and prepared the inquest report as per Ext.1 and sent the dead body to the District Headquarters Hospital, Keonjhar for post-mortem examination vide dead body challan (Ext.10). P.W.7 seized the wearing apparels of the deceased as per seizure list Ext.11. On 16.02.2007, P.W.7 arrested the appellant and while the appellant was in police custody, he confessed to have killed the deceased by an axe and concealed the same in his bed room, which was under lock and key and the key being with him. The disclosure statement of the appellant was recorded as per Ext.2 and the appellant led the police party to his house, opened the lock of that room and showed P.W.7 the tangia, which was kept in a corner of that room. P.W.7 seized the tangia as per seizure list Ext.3. The wearing apparels of the appellant as well as his bicycle was seized as per seizure list Ext.5 and thereafter, P.W.7 sent the appellant to D.H.H., Keonjhar for collection of his biological samples and on being collected, the same were seized as per seizure list Ext.12. P.W.7 made a query to the Medical Officer conducting autopsy over the dead body of the deceased as per Ext.7 as to whether the injuries sustained by the JCRLA No.46 of 2008 Page 4 of 33 deceased could be possible by the seized Tangia. He produced the exhibits seized in the Court of learned S.D.J.M., Keonjhar and prayed for dispatching the same to the S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and also received the chemical examination report (Ext.14) and serological examination report (Ext.15). Upon completion of investigation, P.W.7 submitted charge sheet against the appellant on 26.04.2007 under sections 302/364/201 of the I.P.C. Framing of Charges: 3. After submission of charge sheet, following due procedure, the case was committed to the Court of Session where the learned trial Court framed charges as aforesaid and since the appellant pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prove his guilt. Prosecution Witnesses, Exhibits & Material Objects: 4. In order to prove its case, the prosecution examined as many as seven witnesses. P.W.1 Sabitri Mahakud is the mother of the deceased and sister-in-law of the appellant and also the informant in this case. She stated that on the date of occurrence at around 03.00 JCRLA No.46 of 2008 Page 5 of 33 p.m., the appellant took the deceased from her house on a bicycle on the plea of collecting “kendu” and around 05.00 p.m., the appellant returned alone and when P.W.1 enquired about the whereabouts of the deceased, the appellant told that he might be playing somewhere. She further stated that even though thorough search was made on the same day, but the deceased could not be traced out and in the morning she found the dead body of the deceased in the jungle near Sia Nala having cut injuries on his face and both side neck. She further stated that by the morning, the appellant had fled away from their house. P.W.2 Parikha Dehury is a co-villager of the informant and a witness to the preparation of the inquest report vide Ext.1 and also a witness to the disclosure statement made by the appellant as per Ext.2. He is further a witness to the seizure of tangia (Ext.3) and seizure of blood stained earth as per seizure list Ext.4. P.W.3 Amuli Mahakud is the brother of the appellant and he stated that around evening of the date of occurrence, the appellant called the deceased and took him away on a bicycle on the plea of collecting kendu and he further stated that the appellant had a tangia with him. He also stated that at night when the appellant returned alone and the deceased was not JCRLA No.46 of 2008 Page 6 of 33 with him, he asked him about the deceased to which he replied that the deceased had not gone with him. He further stated that in spite of thorough search, the whereabouts of the deceased could not be traced out and on the next day, the dead body of the deceased was found in the jungle and his neck had been cut. P.W.4 Kandra Pradhan is a co-villager of the appellant who stated that upon being informed about missing of the deceased, he along with others conducted a search on being requested by the family members of the deceased. He is a witness to the seizure of blood stained earth as per seizure list Ext.4 and also a witness to the disclosure statement made by the appellant as per Ext.2 as well as seizure of the tangia and bicycle of the appellant as per Exts.3 and 5 respectively. P.W.5 Dr. Pradip Kumar Nayak was working as an Assistant Surgeon at the District Headquarters Hospital, Keonjhar and he conducted post-mortem examination over the dead body of the deceased and submitted his report as per Ext.6. He also furnished the query report as per Ext.7/1. P.W.6 Magu Pradhan is a co-villager of the appellant who stated that that upon being informed about missing of the deceased, he along with others conducted a search on being requested by the family members of the deceased. He further JCRLA No.46 of 2008 Page 7 of 33 stated that on the next day of the occurrence, the dead body of the deceased was found in Sia Nala jungle and the neck of the deceased had been cut. He further stated that three days after the occurrence, the appellant who had escaped came to the village and police arrested him and he confessed to have murdered the deceased. P.W.7 Ajit Kumar Swain was working as Officer in- charge of Sadar P.S., Keonjhar and he is the Investigating Officer of the case. The prosecution proved fifteen numbers of documents to fortify its case. Ext.1 is the inquest report, Ext.2 is the disclosure statement made by the appellant, Ext.3 is the seizure list in respect of one tangia, Ext.4 is the seizure list in respect of blood stained earth, Ext.5 is the seizure list in respect of one bicycle, Ext.6 is the post-mortem examination report, Ext.7 is the query made by P.W.7, Ext.8 is the F.I.R., Ext.9 is the spot map, Ext.10 is the dead body challan, Ext.11 is the seizure list in respect of wearing apparels of the deceased and command certificate, Ext.12 is the seizure list in respect of nail clippings etc., Ext.13 is the office copy of forwarding report of S.D.J.M., Keonjhar to S.F.S.L., Bhubanewar, Ext.14 is the C.E. report and Ext.15 is the S.E. report. JCRLA No.46 of 2008 Page 8 of 33 Defence Plea: 5. The defence plea is one of complete denial of the prosecution case. To dislodge the prosecution case, the appellant examined himself as the sole defence witness. D.W.1 Samara Mahakud is the appellant in this case who stated that the informant is his sister-in-law and P.W.3 is his sister. He stated that he stayed outside his village and used to take cattle of people for grazing and his wife stayed in her parent’s house with his children. He further stated that he had good and cordial relationship with his parents, brothers and sisters. He further stated that the deceased was his brother’s son, i.e. nephew and he was very cordial with him. He further stated that on the date of alleged occurrence, voting for panchyat election was going on in his village school and he was outside the school and the deceased was not with him at that time. He further stated that after the alleged occurrence, he had not escaped from his village and he had not led the recovery or seizure of any budia. JCRLA No.46 of 2008 Page 9 of 33
Facts
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 the appellant is the relative of the deceased, who was seven years old at the time of occurrence. Learned trial Court further held that the appellant took the deceased on bicycle on the plea of collecting Kendu and during such time, he was carrying a tangia with him. After some time, he returned alone without the deceased and when questioned about whereabouts of the deceased, he gave prevaricating statements and thereafter escaped somewhere and on the next day morning, the dead body of the deceased was found with fatal injuries. It is also held that no strong reason is there to disbelieve the witnesses on this score and the prosecution has well established the ‘last seen theory’. It is also held that the fact that the appellant escaped somewhere after the occurrence and gave prevaricating statements about the deceased whom he had taken on the plea of collecting kendu fortified his guilt. It is also held that there is no reason to disbelieve the evidence of the prosecution that the appellant after the occurrence while in police custody led to the recovery and seizure of the weapon of offence, i.e. tangia. It is JCRLA No.46 of 2008 Page 10 of 33 further held that the evidence of the prosecution is clear that the appellant kidnapped the deceased on the plea of collecting kendu and killed him and threw the dead body in Sia Nala jungle. The learned trial Court also relied on the chemical examination report (Ext.14) and serological examination report (Ext.15) and came to hold that the wearing apparels of the appellant contained human blood. Learned trial Court also held that in view of clinching, acceptable, cogent and trustworthy evidence of the prosecution, the evidence of the appellant denying the allegations, would carry less value and further held that minor discrepancies here and there are to be over-looked. Accordingly, the learned trial Court found the appellant guilty under sections 364/302/201 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
We are of the view that the prosecution has failed to establish any motive on the part of the appellant to commit the murder of the deceased. Admittedly, in the instant case, the prosecution case is solely based on circumstantial evidence and failure on the part of the prosecution to put forward even any probable motive for commission of the ghastly crime, certainly weakens its stance and leaves a hollow in the chain of incriminatory circumstances. Whether the appellant is liable to discharge burden U/S 106 of the Evidence Act?: 10. With regard to the next important circumstance i.e. the last seen of the deceased in the company of the appellant, P.Ws. 1 and 3 are two witnesses who have deposed in that respect. P.W.1 has stated that on the date of occurrence around 3.00 p.m. while she was in her house, the appellant took the deceased from the house on a bicycle on the plea of collecting ‘kendu’ and the appellant alone returned around 5.00 p.m. in the evening and when she asked the appellant regarding the whereabouts of the deceased, the appellant replied that the deceased might be playing somewhere and on the next day morning, the appellant fled away somewhere and the dead body JCRLA No.46 of 2008 Page 20 of 33 of the deceased was found in the jungle near Sia Nala with cut injuries on his face and neck. In the cross-examination, she stated that she had not seen the occurrence and further stated that except P.W.3 and herself, none had seen the appellant taking the deceased on his bicycle. Since the relationship between the appellant and the deceased so also beween the appellant and the family members of the deceased was good, it seems that there was no objection from the side of P.W.1 to the deceased accompanying the appellant. P.W.3, on the other hand, stated that in the afternoon, the appellant and the deceased took rice and around evening, the appellant called the deceased and took him on a bicycle on the plea of collecting ‘Kendu’ and the appellant had a ‘tangia’ with him and in the night, when the appellant returned alone, the deceased was not with him and when she asked the appellant regarding the whereabouts of the deceased, the appellant replied that the deceased had not gone with him. Even though P.W.3 has stated that while leaving the house with the deceased, the appellant was carrying a tangia with him, the evidence of P.W.1 is silent in that respect though P.W.1 and P.W.3 were the only persons present in the house when the JCRLA No.46 of 2008 Page 21 of 33 appellant stated to have taken the deceased with him. In the cross-examination, P.W.3 has stated that in the afternoon voting was going on for Panchayat Election in the school outside the village and the villagers were there in the school for such election and the deceased had also gone to that school. If that be so, then there should have been evidence on record as to when the deceased returned from the school to his house to accompany the appellant. Similarly, the timing when the appellant took the deceased with him is discrepant inasmuch as P.W.1 stated that it was around 3.00 p.m. and that the appellant returned alone at 5.00 p.m. whereas P.W.3 has stated that the appellant took the deceased in the evening hours and he alone returned in the night. If the deceased had gone to the village school where Panchayat Election was going on and the villagers were present there, then the possibility of the deceased coming in contact with other persons cannot be ruled out. Therefore, it is a doubtful feature as to whether the deceased was last seen in the company of the appellant. The time gap is also a very relevant factor in this case as the dead body was found almost fifteen hours after the so-called last seen of the appellant with the deceased and the recovery of dead body. The last seen theory comes into play when the time gap between the point of JCRLA No.46 of 2008 Page 22 of 33 time when the accused and the deceased were last seen alive and when the deceased was found dead is so small that possibility of any person than the accused being the author of the crime becomes impossible. This principle of law has received reiteration from the Hon’ble Supreme Court in a number of cases. In the case of Kiriti Pal -Vrs.- State of W.B. reported in (2015) 11 Supreme Court Cases 178, the Hon’ble Court has referred to some previous precedents on this point and held as follows: “18. In State of U.P. v. Satish [State of U.P. v. Satish, (2005) 3 SCC 114 : 2005 SCC (Cri) 642], this Court had stated that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In State of Rajasthan v. Kashi Ram [State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] , in para 23, this Court has held as under: (SCC p. 265) “23. It is not necessary to multiply with authorities. The principle is well settled. The JCRLA No.46 of 2008 Page 23 of 33 provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which JCRLA No.46 of 2008 Page 24 of 33 completes the chain. The principle has been succinctly stated in Naina Mohamed, In re [Naina Mohamed, In re, 1959 SCC OnLine Mad 173 : AIR 1960 Mad 218].” It is no doubt true that in view of section 106 of the Evidence Act, when any fact especially within the knowledge of a person, the burden of proving such fact is open to him and therefore, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted with the company of the deceased. He must furnish explanation which should appear to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden and if he fails to offer any explanation, then that provides an additional link in the chain of circumstances proved against him. However, section 106 does not shift the burden of proof in a criminal trial, which is always open to the prosecution. In the instant case, it is incumbent upon us to thoroughly interpret the words employed in section 106 of the Evidence Act, which reads as follows: “106. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” JCRLA No.46 of 2008 Page 25 of 33 To shift burden on the appellant to prove the whereabouts of the deceased, it is a precondition for the prosecution to prove that the deceased was in fact last seen alive with the appellant and it must rule out any and every possibility of any third person coming in contact with the deceased after the appellant parted way with the deceased. Furthermore, it must also show that the whereabouts of the deceased is ‘especially within the knowledge’ of the appellant. However, in this case, there is no concrete evidence to rule out the possibility of the deceased meeting any other person after parting way with the appellant and also, there is no rigid proof as to whether the appellant knew the whereabouts of the deceased, especially when the time gap between the last seen and discovery of the dead corpse of the deceased is a substantial one. The other witnesses like P.W.2 and the I.O. (P.W.7) also stated that on the date of occurrence, voting for Panchayat Election was going on in the school of that village. Therefore, in the present case, when the last seen evidence adduced by the prosecution is not clinching and possibility of the deceased coming in contact with other persons, particularly in the school where voting for Panchayat Election was going on. Further, since JCRLA No.46 of 2008 Page 26 of 33 there was a huge time gap between the last seen and discovery of the dead body of the deceased and as there are discrepancies as to places where the two were allegedly last seen and the dead body was recovered, it would be very risky to accept such evidence. Whether the evidence adduced U/S 27 of Evidence Act unerringly inculcates the appellant?: 11. The next circumstance adduced by the prosecution is the leading to discovery of ‘tangia’, which is deposed to by P.W.2, P.W.4 and the I.O. (P.W.7). P.W.2 has stated in the examination-in-chief that the police recorded the disclosure statement of the appellant vide Ext.2 and thereafter, the appellant led him as well as the police to his house and produced the ‘tangia’ which was seized under seizure list Ext.3. However, in the cross-examination, he has stated that the police brought out the ‘tangia’ from the house of P.W.1 and there the seizure list was prepared and thereafter, the police returned to the police station and at the time of seizure, the appellant was at the police station. Therefore, the evidence of P.W.2 that the appellant led the police party to his house and gave recovery of ‘tangia’ becomes a doubtful feature. JCRLA No.46 of 2008 Page 27 of 33 P.W.4 has stated that he had not entered into the house of the appellant when the ‘tangia’ was brought out of the house and he further stated that he could not say in which place of the house, the ’tangia’ was concealed and he further stated that weapon like ‘tangia’ is available in all the houses of the village. P.W.7 stated that after the disclosure statement under Ext.2 was recorded, the appellant led him as well as the witnesses to his house and after unlocking the room, he showed him the ‘tangia’ which was kept in one corner of the room and accordingly, the ‘tangia’ was seized as per seizure list Ext.3. As rightly pointed out by the learned counsel for the appellant, even though the doctor (P.W.5) opined regarding possibility of the injury being sustained by means of ‘tangia’, but no blood was detected on it as per the C.E. report (Ext.14) and the ‘tangia’ was also not produced in the Court for its identification by P.W.3, who had seen the appellant carrying the ‘tangia’ so also by the seizure witnesses. No explanation has been offered by the prosecution as to why the seized tangia which was sent to the doctor for query so also to the S.F.S.L., Rasulgarh, Bhubaneswar for C.E. examination was not produced JCRLA No.46 of 2008 Page 28 of 33 during trial. Non-production of the alleged weapon of offence in the case of this nature further weakens the prosecution case. In the case of Gopabandhu Swain -Vrs.- State of Orissa reported in (1991) 71 Cuttack Law Times 411, this Court has held that non-production of weapon of offence before the Court undoubtedly creates a dent on the prosecution case and observed as follows: “7. As regards non-production of the spade with which the petitioner was armed, though the same was seized, is undoubtedly a lacuna on the part of the prosecution. Production of the seized arm with which the offence is committed is always salutary and when it is not so produced, an explanation for the same should forth come. But it is not an uniform rule in all cases that where the weapon of offence is not produced the prosecution must fail. There are a large number of cases where the weapon if not recovered or even if recovered is not possible to be produced for reason of being lost or damaged but for such reason alone the prosecution case cannot be thrown out. It again is a question of prejudice suffered by the accused on that account.” JCRLA No.46 of 2008 Page 29 of 33 In the present case, the weapon of offence i.e. ‘tangia’ was recovered and the same was also produced before the Forensic Science Laboratory for chemical examination and also before the doctor (P.W.5), who conducted post mortem examination over the dead body of the deceased, for his opinion as to the possibility of the injuries sustained by the deceased by such weapon, but it was not produced before the learned trial Court to be marked as a material object. Though law is clear that mere non-production of weapon of offence does not derail prosecution case which is otherwise proved through reliable evidence, but when the prosecution case is not proved to the hilt and production of weapon has potential to affect the judgment of the learned Court, then omission to produce such weapon may cause irreparable damage to the prosecution case. Furthermore, the reason behind non-production of the ‘tangia’ has not been explained and it has been kept away from the Court for the reason best known to the investigating agency. Moreover, out of two last seen theory witnesses, i.e. P.W.1 and P.W.3, P.W.3 has stated about the appellant carrying a ‘tangia’ with him while taking the deceased on the bicycle, but none of them have stated that when the appellant returned to JCRLA No.46 of 2008 Page 30 of 33 the house, he had brought back that ‘tangia’. Therefore, how the ‘tangia’ came back to the house of P.W.1, if the same had been taken by the appellant with him, is also a doubtful feature. Though P.W.7 has stated that the appellant came to his house, opened the lock of his room and showed him the ‘tangia’, which he had kept in a corner of that room, no other seizure witnesses have stated in that way. The seizure list under Ext.3 indicates that it was prepared on 16.02.2007, but P.W.2 has stated that the police had not read over and explained the seizure list to him and being told by the police, he signed on the seizure list. Therefore, the evidence of seizure of ‘tangia’ cannot be used as an incriminating material against the appellant. So far as wearing apparels of the appellant is concerned, the seizure list indicates that one deep blue colour half pant and one red colour full shirt was seized on 16.02.2007 as per seizure list Ext.5. The forwarding report of such wearing apparels for C.E. Examination is dated 16.04.2007. The Investigating Officer has not adduced any evidence as to whether he kept the seized wearing apparels of the appellant in a sealed condition for two months before it was produced in the Court for being sent for chemical examination. When the safe JCRLA No.46 of 2008 Page 31 of 33 custody of the wearing apparels is a doubtful feature, the allegation of blood stain found on the pant of the deceased as per the C.E. report (Ext.14) cannot be utilized against him. Conclusion: 12. In view of the foregoing discussions, we are of the humble view that the prosecution has failed to establish the chain of unimpeachable evidence against the appellant. The circumstances of this case have no definite tendency to unerringly point towards the guilt of the appellant and that it cannot be said that the circumstances adduced by the prosecution only point towards the conclusion that it is the appellant and none else who was the author of the crime. There is a long mental distance between ‘may be true’ and ‘must be true’ and the same divides conjectures from sure conclusions. Even though a seven year old child has lost his life and a grave and heinous crime has been committed, but since there is no satisfactory proof of guilt against the appellant, we have no other option but to give benefit of doubt to him. Accordingly, the impugned judgment and order of conviction of the appellant under sections 302/364/201 of the I.P.C. is not sustainable in JCRLA No.46 of 2008 Page 32 of 33 the eyes of law and the same is hereby set aside. The appellant is acquitted of all the charges. The appellant is in judicial custody since 17.02.2007. He be set at liberty forthwith if his detention is not required in any other case.
Arguments
Mr. Bikash Chandra Parija, learned counsel appearing for the appellant contended that this is a case based on circumstantial evidence and there are mainly three circumstances in this case i.e. (i) the appellant was last seen with the deceased; (ii) leading to discovery of axe at the instance of the appellant and (iii) wearing apparels of the appellant were seized and human blood was found on the JCRLA No.46 of 2008 Page 11 of 33 half pant of the appellant. Learned counsel further argued that the prosecution has failed to establish any motive behind the commission of murder and there was time gap of about fifteen hours between last seen as deposed to by P.Ws.1 and 3 and the recovery of the dead body and when the evidence on record indicates that the deceased had been to the school in the afternoon where the voting was going on for Panchayat election and the villagers were present there in the school and there is no evidence when the deceased returned to his house from the school and accompanied the appellant on the bicycle, the last seen theory is a doubtful feature. So far as leading to discovery of axe is concerned, the statements of the witnesses are discrepant in nature and moreover, it appears from the evidence of P.W.2 that the appellant had not been with the police to the house of P.W.1 wherefrom the tangia was seized and thus, much importance cannot be attached to the seizure of tangia, particularly when no blood was found on it and even the tangia was not produced during trial to be marked as a ‘material object’. Learned counsel urged that since the circumstances have not been cogently and firmly established and even if taken cumulatively, do not form a complete chain unerringly pointing towards the guilt of the appellant, it is very difficult to sustain JCRLA No.46 of 2008 Page 12 of 33 conviction of the appellant and therefore, it is a fit case where benefit of doubt should be extended to the appellant. Mr. Jateswar Nayak, learned Addl. Government Advocate, on the other hand, argued that P.W.1 and P.W.3 have specifically stated that the deceased, who was a boy aged about seven years, accompanied the appellant on the bicycle in the afternoon and after two hours, the appellant alone returned back and when he was confronted about the whereabouts of the deceased, he expressed his ignorance and stated that the deceased had not gone with him and nobody has seen the deceased alive thereafter and on the next day, the dead body of the deceased was found in the jungle and the appellant has not explained as to when and where he parted with the company of the deceased and therefore, this is a very strong circumstance against the appellant. Learned counsel further argued that P.W.3 had seen the appellant carrying a tangia with him while taking the deceased on the bicycle and the tangia was recovered at the instance of the appellant on the basis of his statement recorded under section 27 of the Evidence Act and the doctor who conducted the post mortem examination has noticed incised wounds on the body of the deceased and he has also examined JCRLA No.46 of 2008 Page 13 of 33 the tangia seized at the instance of the appellant on the query made by the I.O. and gave his opinion in the affirmative, which is also a clinching evidence against the appellant. Learned counsel further submitted that the wearing apparels of the appellant were seized on being produced by the appellant and the chemical examination report (Ext.14) indicates that human blood was found on his half pant and therefore, the learned trial Court is quite justified in convicting the appellant and thus, the appeal should be dismissed. Whether the deceased met a homicidal death?: 8. Before adverting to the contentions raised by the learned counsel for the respective parties, we have to carefully scrutinize the evidence on record to determine as to how far the prosecution has proved that the deceased had met with a homicidal death. The doctor (P.W.5) conducted post-mortem on the dead body of the deceased and noticed the following injuries: (i) (ii) Incised wound on right cheek on the ramus of the mandible of size 1½ x ½ “ x 1/5th ; Incised wound that started from the left side of the neck below the middle of the body of mandible runs JCRLA No.46 of 2008 Page 14 of 33 anteriorly to the right side and then to the middle of the nape of neck. The size was 6 ½ “x 3” x 2”. The doctor opined that all the injuries were ante mortem in nature and might have been caused by a sharp cutting weapon. On dissection, P.W.5 found that larynx was cut above thyroid cartilage transversely. Trachea was intact. External and internal jugular veins and common carotid arteries on both the sides were cut and lacerated and oesophagus was cut transversely and these injuries were ante mortem in nature. He opined that the death of the deceased was due to haemorrhage as a result of injury to carotid vessels and the said injuries were sufficient in ordinary course of nature to cause instantaneous death and the death was homicidal in nature. The I.O. (P.W.7) also made a query regarding the possibility of the injuries sustained by the deceased by the weapon ‘tangia’ seized during investigation and the doctor opined that it is possible and the query report has been marked as Ext.7/1. In view of the evidence available on record, the inquest report (Ext.1), the post mortem findings as per Ext.6 and the evidence of the doctor (P.W.5), who conducted post mortem examination over the dead body of the deceased, we are of the JCRLA No.46 of 2008 Page 15 of 33 view that the prosecution has successfully established that the deceased met with a homicidal death. Whether the prosecution proved any motive behind the commission of crime by the appellant?: 9. The informant (P.W.1) has stated that the appellant is her brother in-law, being the younger brother of her husband. She further stated that the appellant was staying separately from his wife and children and he was living with the family of P.W.1. She has stated that the appellant was quarrelling with her, her son (the deceased), her husband and her father in-law. In the cross-examination, she has stated that for one year, the appellant was staying with his parents in their house and he was earning by tending cattle of the sahi people. She further stated that in her house, the appellant was staying separately and she along with her family members were staying separately and her parents-in-law were staying separately and the appellant sometimes used to have food with them and at times, he was taking food with his parents. She further stated that the appellant had no dispute with her, her husband and her son, but he was having dispute with his parents. She further stated that JCRLA No.46 of 2008 Page 16 of 33 she along with her husband’s sister (P.W.3) were present in the house when the appellant took the deceased on the bicycle. P.W.3, on the other hand, stated that though the appellant had no good relationship with the family members, but he had good relationship with the deceased and on the date of occurrence, the deceased served food to the appellant. No other family members of the appellant had been examined. From the evidence of P.Ws.1 and 3, nothing has been proved that there was any kind of motive on the part of the appellant to commit the murder of the small child who is none else than his nephew, particularly when their relationship was very good. Law is well settled that motive for commission of an offence holds greater importance in a case which is based on circumstantial evidence. Absence of motive can be a missing link in the chain of incriminating circumstances, though if other circumstances are proved by the prosecution to the hilt which are clinching and forming a complete chain, then absence of motive cannot be a ground to disbelieve the entire prosecution case. In the case of Anwar Ali -Vrs.- State of H.P. reported in (2020) 10 Supreme Court Cases 166, the Hon’ble Supreme Court held as follows: JCRLA No.46 of 2008 Page 17 of 33 “24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179], absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under: (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC pp. 200-01)” [Emphasis supplied] It is also settled position of law that motive alone, in absence of any other circumstantial evidence, would not be JCRLA No.46 of 2008 Page 18 of 33 sufficient to convict the appellant. Presence of motive bereft of other circumstances, may create strong suspicion, but suspicion howsoever strong cannot relax the requirement of proving guilt of the accused beyond all reasonable doubts. To this effect, we may profitably borrow credence from the following observations made by the Hon’ble Supreme Court in the case of State of U.P. -Vrs.- Sanjay Singh (Dr) reported in 1994 Supp (2) SCC 707. “18. At the highest, the prosecution can only suggest from the circumstances what is or may be the motive for any particular act. However, motive is not a sine qua non for bringing the offence of murder or of any crime home to the accused. At the same time the absence of ascertainable motive comes to nothing, if the crime is proved to have been committed by a sane person but to eke out a case by proof of a motive alone - that too suspicion of motive - apparently tending towards any possible crime, is not only a very unsatisfactory but also a dangerous process, because circumstances do not always lead to particular and definite inferences and the inferences themselves may sometimes be erroneous.” JCRLA No.46 of 2008 Page 19 of 33
Decision
In the result, the JCRLA is allowed. The trial Court records with a copy of this judgment be sent down to the Court concerned forthwith for information and compliance. Before parting with the case, we would like to put on record our appreciation to Mr. Bikash Chandra Parija, Advocate for the appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, Addl. Govt. Advocate. Chittaranjan Dash, J. I agree. ................................. S.K. Sahoo, J. …............................... Chittaranjan Dash, J. Orissa High Court, Cuttack. The 28th day of November, 2024/ PKSahoo JCRLA No.46 of 2008 Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2024 11:33:41 Page 33 of 33