MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.376 of 2016 In the matter of an Appeal under section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 20.05.2016 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.05 of 2014. Dhaneswar @ Gurudev Patra …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. B.K. Behera-1, Advocate For Respondent : Mr. P.K. Mohanty, ASC CRLA No.76 of 2017 Sugda Hembram @ Sukda …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. B.K. Behera-1, Advocate For Respondent : Mr. P.K. Mohanty, ASC CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 1 of 14 CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 25.06.2024 : Date of judgment : 20.08.2024 V. Narasingh, J. Since both the Appeals are arising out of judgment dated 20.05.2016 passed by the learned Additional Session Judge Rairangpur in S.T. Case No.5 of 2014, they are taken up together and disposed of by this common judgment on the consent of the parties. 2. The Appellants, by filing these Appeals, have called in question the judgment of conviction and order of sentence dated 20.05.2016 passed by the learned Additional Sessions Judge,
Legal Reasoning
Rairangpur in Sessions Trial No.05 of 2014 arising out of G.R. Case No.460 of 2013 , T.C. No.1394 of 2013 on the file of learned S.D.J.M, Rairangpur. 3. The Appellants (accused) have been convicted for committing the offence under Section 364/302/201/34 of Indian Penal Code (for short, “the IPC”). Accordingly, they have been sentenced to undergo imprisonment for life under Section 302/34 IPC and each of them were directed to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for a period of six months further each and rigorous imprisonment for three years and to pay a fine of Rs.3,000/- CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 2 of 14 each for the offence U/s.201/34 of IPC in default each of were directed to undergo rigorous imprisonment for two months more each. 4. The case of the prosecution is that on 27.08.2013, the informant- Pitambar Mohant (P.W.1) lodged a written report before the O.I.C. Bahalda P.S to the effect that on 25.08.2013 at about 7 a.m. his son (Subrat) left his house on motorcycle and later on having come to know that his son has been abducted by the Appellants along with his motorcycle and after killing him, the accused persons have concealed his deadbody somewhere at the bordering area of Badampahad Police Station and within Kumbhardubi P.S. limits in the district of West Singhbhum in the State of Jharkhand. Treating such written report as FIR, Bahalda Police Station Case No.64 of 2013 U/s.364/302/201/34 of IPC was instituted with the present Appellants, as the named accused persons and investigation was taken up in right earnest. 5. During the course of investigation, the I.O., O.I.C. of Police Station, Malik Chand Sahu (P.W.22) apprehended the appellant-Sugda Hembram @ Sukda (i.e. appellant in CRLA No.76 of 2017) on 26.08.2023 along with motor cycle of the deceased and as per his disclosure statement, deadbody and weapon of offence were stated to have been recovered and seized from the bank of Kanhu Nala within CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 3 of 14 Kumardubi P.S. limits along with the wearing apparels and footwear (Chappals) of the deceased. Accused-appellant Dhaneswar @ Gurudev Patra (i.e. appellant in CRLA No.376 of 2016) was apprehended on 29.08.2013 and after conclusion of investigation, charge sheet was filed against the present appellants U/s.364/302/201/34 of IPC. 6. Apart from examining 23 witnesses, prosecution also proved several documents and four material objects (M.Os.) i.e. MO-I-Straight Knife, MO-II-Curve knife, MO-III (Chadi), MO-IV (Banion), which were also admitted into evidence. 7. No oral and documentary evidence was adduced by the defence and the stand of the defence was one of complete denial and false implication. 8. P.W.20 (Dr. Debendra Nath Tudu) is the Doctor who conducted autopsy of the deadbody of the deceased on 27.08.2013 around 2.40 P.M. on police requisition and found the following injuries; “External Injury. (i) Rigor-mortis present on both upper and lower limbs, eyes are protruded, mouth semi opened, maggot coming out from eyes, nostrils, ears and hydrocele on left side of testis. CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 4 of 14 Injuries. (1) One incised wound of size 5 x 3 x 1cm. on left side of forehead situated obliquely. The cut margin was clear cut straight and everted. (2) Incised wound of size 20 x 10 x 10 cm. on the anterior aspect of neck almost covering half portion of the neck. Margin were clean cut, straight and everted. (3) Incised wound of size 1 x 1 x 1 cm. on posterior aspect of left ear pinna.” He has opined that all the injuries were ante mortem in nature and the cause of death was due to massive haemorrage following heavy bleeding due to cut injuries of the vessels of the neck and throat and time of death was stated to be within 24 to 48 hours prior to the post-mortem examination. Hence from the aforesaid, there is no iota of doubt that the son of the informant was done to death. 9. The case at hand is based on circumstantial evidence and circumstances, as noted by the learned Trial Court, are as under; “(1) On the fateful day of the incident i.e. 25th August, 2013 last seen with accused persons the deceased was proceeding in his motor cycle on the road leading to state of Jharkhand. (2) Failure on the part of accused persons to give satisfactory explanation about missing of the deceased from their company after they were last seen. (3) Taking up steps at the afternoon hour of the date of occurrence to dispose of the motor cycle of deceased and seizure of the said motor cycle with its R.C. Book and other documents. CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 5 of 14 (4) Recovery of weapon of offence (two numbers of knife) and wearing apparels of deceased pursuant the confessional statement of accused Sukda and Dhaneswar respectively. to (5) Obtaining prescription for sedative medicine by accused Sukda and purchasing the same in his name on the date of occurrence before proceeding for the spot of occurrence. (6) Motive to kill” 10. To establish the last seen theory, the prosecution has strongly relied on the evidence of P.Ws.2, 3, 4, 5, 7, 10, 12 and 14. Though P.Ws.2 and 3 claim to have seen the accused persons taking away the deceased on his motor cycle making him sit in the middle but their testimony was not found to be reliable, since they did not state the same before the I.O. during investigation and it is apt to note here that the attention of the I.O. was specifically drawn to such statement of the said P.Ws.2 and 3 in Court. P.W.5, whose statement was also of the same tenor as that of P.W.2, in his cross-examination admitted that he had no prior acquaintance either with the accused persons or deceased and as he failed to identify the accused persons, his testimony was also discarded. P.W.12 is the brother in-law of the informant and was cited as a witness to the last seen theory. But, since he stated about the same CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 6 of 14 for the first time in Court, his evidence was also not taken into account by the learned Trial Court. P.W.14, who is the nephew of the informant, claimed that he saw the deceased being taken on a bike by the accused and proceeding towards Hatbadada on 25.08.2013. It is forthcoming from the evidence of P.W.1, the informant, the father of the deceased that since the deceased was found missing from 25.08.2013, he was frantically searching for him. Thereafter, he does not stand to reason that P.W.14, who was related to the informant as well as the deceased, would not have said anything to the informant and taking note of the same, the learned Trial Court did not rely on the evidence of the said witnesses. 11. The learned Trial Court relying on the evidence of P.Ws.4, 7 and 10 came to the finding that the last seen theory is established. P.W.4 is a co-villager so also P.W.7. It is indeed strange and runs counter to normal human conduct that they will not disclose anything to P.W.1, the father, who was frantically searching for his son or any other co-villager and only stated the same for the first time before the I.O. on 27.08.2013. On a self-same analysis, it is stated by P.W.10 that he had acquaintance with one of the accused Dhaneswar as he used to go to the house of his brother-in-law of the village CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 7 of 14 Duarbandh. It is his statement in Court that the accused persons were proceeding in a motor cycle with the deceased sitting in the middle and he has categorically stated in his statement in Court that the accused Dhaneswar was driving. The learned Trial Court has noted the defence stands so far as the credibility of P.W.10 is concerned that he did not state anything to the I.O.. At the cost of repetition it is stated that the conduct of P.W.10 also militates against normal human behavior. When all round search was on for the son of a co-villager and Dhaneswar (Appellant in CRLA No.376 of 2016) is a named accused, in the given circumstance, non-disclosure before any of the villagers by P.W.4 and 7 and by P.W.10 before the I.O. when he reached the village has to be viewed inconsistent with natural human conduct and this Court is not persuaded to hold that their testimony stands the test of credibility. 12. Admittedly, in the case at hand recovery of the body of the deceased as well as the alleged weapon of offence relating to recovery of one Banian, one black colour full pant and a pair of footwear-chapal (Ext.3) at the instance of the accused (Dhaneswar) were made after seizure of the incriminating articles as has been unambiguously referred to in Paragraph-23 of the impugned judgment. CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 8 of 14 The learned Trial Court while accepting the stand of the defence that the statement of the accused persons cannot be said to be admissible, in terms of Section 27 of the Evidence Act but treats the same as admissible of their conduct U/s.8 of the Evidence Act and in this context, refers to the judgment of the apex Court in the case of Dharam Deo Yadav vs. State of U.P. reported in (2014) 58 OCR (SC) - 320. In the said case, the moot point for consideration was the connotation of custody in terms of Section 27 of the Evidence Act. For convenience of reference, the said section is culled out hereunder; Section 27 of the Evidence Act, 1872 - “27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 12-A. In the aforementioned case relied upon the learned Trial Court, P.W.14 was the I.O. and the discovery of the skeleton of the deceased was made, the Appellant- Dharam before the Supreme Court was not cited as an accused. Hence it was urged that his statement cannot be treated to be one U/s.27 of the Evidence Act. But, since in furtherance of the statement made by him to P.W.14, the I.O., the CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 9 of 14 skeleton of the deceased was recovered, it was held to be admissible U/s.8 of the Evidence Act. Since there was no explanation as to how the skeleton could be recovered from his house, such statement was held to be admissible as U/s.8 of the Evidence Act. Facts scenario in the case at hand is completely at variance with the judgment on which reliance has been placed, inasmuch as, as has been held on a close scrutiny of the evidence, it is seen that admittedly there was no recovery of the deadbody or the weapon of offence at the instance to the accused persons and it is also worth noting that the Exts.18 and 20 (Confessional statements of Appellants), as stated by the I.O., were prepared after seizure of the incriminating materials and the same also does not contain any signatures. Hence, the reasoning of the learned Trial Court to treat the recovery as a conduct U/s.8 of the Evidence Act has to be held to be nonest in the eye of law. 13. On an analysis of the evidence on record, this Court is not persuaded to hold that the chain of circumstances to prove the last seen theory is established. 14. From the aforesaid circumstances, the recovery cannot be held to be legally acceptable evidence. The opinion of the Doctor that CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 10 of 14 the injuries can be caused by the Knives- M.Os.I and II is of no significance. 15. The other incriminating material which has been relied upon is the attempt of the accused in trying to dispose of the motorcycle of the deceased. 16. P.W.8 is the Gramarakhi. It has been brought out in the cross-examination of the I.O. that the attention of P.W.22, on the basis of cross-examination of the Gramarakhi-P.W8 was drawn to the previous statement of the said P.W.8. P.W.22 has admitted that P.W.8-Gramarakhi has not stated before him that he along with accused Dhaneswar came to Kacheri area and shown smart card relating to the motor cycle in question to an advocate. 17. P.W.12 is also relied upon as a witness and P.W.17 who was stated to be another witness to the attempt of accused Dhaenswar trying to dispose of the motorcycle with the help of P.W.8 did not support the prosecution. 18. In the face of such material contradiction in the evidence relating to alleged attempt by the accused to dispose of the motorcycle, the same cannot be held to be an incriminating circumstance against the accused, as has been held by the learned Trial Court. CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 11 of 14 19. It needs no emphasis that in a case based on the circumstantial evidence, as held in Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, the chain of circumstance must be so interlinked so as to negate the hypothesis of any other plausible explanation than the guilt of the accused. The standard of proof has to be absolute that it is the accused and the accused alone who have committed the offence to the exclusion of all others. It is trite law that motive is a relevant factor for consideration in a case based upon circumstantial evidence. Though motive was cited as one of the circumstances, no evidence was adduced by the prosecution to fortify its stand regarding motive. The learned trial court as such did not record any finding relating to motive but came to a conclusion in view of other incriminating circumstances such as last seen theory and accused persons conduct and the vague explanation given by the accused-appellants in their statement recorded U/s.313 Cr.P.C., non-establishment of motive does not in any way weaken the case of the prosecution. In fact the explanation u/s.313 Cr.P.C. was taken as additional link for completing the chain of circumstances. CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 12 of 14 The Apex Court in the case of Pradeep Kumar vrs State of Chhatishgarh reported in (2023) 5 SCC 350: 2023 LiveLaw (SC) 239, relating to appreciation of evidence in a case based on circumstantial evidence, referring to its earlier judgment in the case of Kali Ram vrs. State of H.P. reported in (1973) 2 SCC 808 held thus; “where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favorable to the accused must be adopted.” (emphasized) 20. On a thorough analysis of the evidence on record, this Court is of the considered view that the last seen theory which is the backbone of the case of the prosecution has not been established in the case at hand beyond reasonable doubt. There is no legally admissible evidence relating to either recovery of the deadbody or weapon of offence and there is no credible evidence to indicate the factum of the accused persons trying to dispose of the vehicle of the deceased. 21. Hence, on a conspectus of materials on record, this Court finds the appreciation of the evidence by the learned Trial Court to be fallacious rather based on preponderance probabilities and in the process, the learned trial Court stretched to morbidity, “the cherished principles or golden threads of proof beyond reasonable CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 13 of 14 doubt which run through the web of our law”, as stated by the Apex Court in the case of Pradeep Kumar (Supra). 22. In the result, the Appeals are allowed. The judgment of conviction and the order of sentence dated 20.05.2016 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.05 of 2014 is hereby set aside. Since the Appellants, (Dhaneswar @ Gurudev Patra in CRLA No.376 of 2016 and Sugda Hembram @ Sukda in CRLA No.76 of 2017) are on bail, their bail bonds stands discharged. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 20th August, 2024 / Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Sep-2024 18:15:56 CRLA No.376 of 2016 and CRLA No.76 of 2017 Page 14 of 14