The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No. 148 of 2005 From judgment and order dated 26.07.2005 passed by the Adhoc Additional Sessions Judge, Bonai in S.T. Case No.29/72 of 2000-2004. ---------------------------- 1. Mangra Munda 2. Gobara Munda 3. Sunia Munda @ Kate ....... Appellants -Versus- State of Orissa ....... Respondent For Appellant: - Mr. Susanta Kumar Tripathy Amicus Curiae For Respondent: - Mr. Priyabrata Tripathy Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MR. JUSTICE S.K. MISHRA --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 15.02.2024 --------------------------------------------------------------------------------------------------- By the Bench: There are three appellants in this JCRLA, i.e., Mangra Munda, Gobara Munda and Sunia Munda @ Kate. Learned counsel for the State has produced the written instruction [ 2 ] received from the I.I.C., Koira Police Station dated 16.03.2023 wherein it is mentioned that the appellants Mangra Munda and Gobara Munda are living with their families and maintaining their livelihood by working as daily labourers whereas the appellant Sunia Munda @ Kate is dead since ten to twelve years. In view of section 394(2) of Cr.P.C., since no near relative of the appellant Sunia Munda @ Kate has applied before this Court for leave to continue the appeal, this JCRLA in respect of the said appellant Sunia Munda @ Kate stands abated. Therefore, now this JCRLA is confined only to the appellants Mangra Munda and Gobara Munda. Both these appellants along with Sunia Munda @ Kate faced trial in the Court of learned Adhoc Additional Sessions Judge, Bonai in Sessions Trial No.29/72 of 2000-2004 for commission of offences under sections 302/201/34 of the Indian Penal Code (hereinafter ‘I.P.C.’), on the accusation that on 03.10.1999 at about 3.00 p.m. near Chandiposh road side, they committed murder of Keshab Chandra Patra (hereinafter ‘the deceased’), who happened to be Grama Rakshi, by means of stone in furtherance of their common intention and knowing or having reason to believe that the offence had been committed, they caused certain evidence to disappear by concealing the JCRLA No. 148 of 2005 Page 2 of 42 [ 3 ] dead body of the deceased inside a ditch situated in the jungle of Chandiposh with an intention to screen themselves from legal punishment. The learned trial Court, vide judgment and order dated 26.07.2005, found the appellants guilty of the both the charges and sentenced each of them to undergo imprisonment for life under and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month each under section 302 of the I.P.C. However, no separate sentence was awarded for the offence under section 201 of the I.P.C. Prosecution Case: 2. P.W.3 Karunakar Patra lodged the F.I.R. on 04.10.1999 at about 9 a.m. before the Officer in-charge of Koira police station, wherein he has stated that on that day while he was proceeding towards Matadin Mines in the morning hours, near Chandiposh, he saw the dead body of the deceased who was the Grama Rakshi of Patamunda was lying by the side of the road and he suspected that somebody had committed his murder by attacking him with stone on his head. On the basis of such F.I.R., P.W.13 Prakash Chandra Pal, the O.I.C. of Koira police station registered Koira P.S. Case JCRLA No. 148 of 2005 Page 3 of 42 [ 4 ] No.31 dated 04.10.1999 under section 302 of the I.P.C. against unknown persons and took up investigation of the case. He examined the informant, recorded his statement and made requisition to D.F.S.L., Rourkela for deployment of scientific team and dog squad. He visited the spot and prepared the spot map marked as Ext.13. He held inquest over the dead body of the deceased in presence of witnesses and prepared inquest report marked as Ext.11. The dead body was sent for post- mortem examination. A letter issued to the deceased by P.W.13 with a direction to produce the appellant Sunia Munda @ Kate was seized so also one stone weighing about 10 kgs. stained with blood as per seizure list Ext.7. P.W.13 examined some more witnesses, arrested all the accused persons, seized their wearing apparels under seizure list Exts.3, 4 & 5. The wearing apparels of the deceased were also seized as per seizure list Ext.2 being produced by the constable after the post-mortem examination. On 05.10.1999, a requisition was made to Medical Officer, Koira P.H.C. for collection of blood sample and nail clippings of the appellants. P.W.13 made a query to the Medical Officer, Koira P.H.C. for examination of the stone and opinion regarding possibility of the injury sustained by the deceased with such stone and received the opinion and also the post-mortem JCRLA No. 148 of 2005 Page 4 of 42 [ 5 ] examination report (Ext.8) of the deceased. On the prayer of the Investigating Officer (P.W.13) before the S.D.J.M., Bonai, the seized articles were sent for chemical examination to R.F.S.L., Ainthapalli, Sambalpur and chemical examination report (Ext.16) and serological report (Ext.17) were received by P.W.13. On completion of investigation, P.W.13 submitted charge sheet against the appellants under sections 302, 201/34 of the I.P.C. on 21.12.1999. Framing of Charges: 3. The case was committed to the Court of Session following due committal procedure and the learned trial Court framed charges as aforesaid. Since the appellants pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish their guilt. Prosecution Witnesses, Exhibits & Material Objects: 4. In order to prove its case, the prosecution examined as many as thirteen witnesses. P.W.1 Padman Buda was working as a constable in Koira Police Station. He accompanied the dead body of the deceased to Koira hospital for post-mortem examination. After the post-mortem examination, he obtained the wearing apparels JCRLA No. 148 of 2005 Page 5 of 42 [ 6 ] of the deceased and produced the same before P.W.13. He is also a witness to the seizure of the wearing apparels of the appellants as per seizure list Exts.3 to 5. P.W.2 Pitambar Bariha was posted as a constable in Koira Police Station. He is a witness to seizure of the wearing apparels of the deceased as per seizure list Ext.2. He is also a witness to the seizure of the wearing apparels of the appellants as per seizure list Exts.3 to 5. P.W.3 Karunakar Patra is the informant in this case. He narrated about the incidents as described in the F.I.R. and supported the prosecution case. He is also a witness to the seizure of one stone, weighing about 8 to 9 kgs. lying on the spot, as per the seizure list Ext.7. P.W.4 Sati Patra stated that on the date of occurrence at about 3 p.m. when she along with some other labourers was engaged in the weeding operation in her land, she found three persons quarrelling with the deceased in a loud voice. On the next day, she came to know that the deceased had been killed. P.W.5 Padma Patra was working as a labourer in the land of P.W.4 on the date of occurrence. She stated that at about JCRLA No. 148 of 2005 Page 6 of 42 [ 7 ] 12 noon, she saw three persons quarrelling with the deceased in loud voice. Upon being shown by the Court, she identified the appellants as the those three persons. On the next day, she came to learn that somebody had killed the deceased and his dead body was lying by the side of the road which led to Koida. P.W.6 Manohar Patra is a witness to the seizure of one stone and one written notice from the pocket of the deceased as per seizure list Ext.7. He further stated that the stone was stained with blood. P.W.7 Laxman Nag stated that a day after the occurrence, he came to know that the deceased was killed and his dead body was lying by the side of the road leading to Baldihi-Koida. He also stated that one day prior to the incident, he found two of the accused persons quarrelling with the deceased on the issue of fishing and he intervened and pacified the quarrel. However, he denied to have any further knowledge about the case for which he was declared hostile by the prosecution. P.W.8 Dr. Madhusudan Singh Mankee was working as the Medical Officer at the C.H.C., Koira. He, on police requisition, conducted post-mortem examination on the dead body of the JCRLA No. 148 of 2005 Page 7 of 42 [ 8 ] deceased and proved his report vide Ext.8. He also opined that the injuries found on the dead body of the deceased were possible by the stone produced before him for examination. P.W.9 Mohan Charan Das was working as the supervisor in the office of Mines at Patmunda. He stated that on the date of occurrence at about 11 a.m., the deceased came to him being accompanied by the appellants and asked him to provide a dumper so as to take the appellants to Koira police station as they were required by the police. However, he expressed his inability to provide the dumper for which all of them left the place. He further stated that at about 03.30 p.m. on that day, he found the deceased with the appellants moving towards Koira. On the next day, he heard that the deceased was killed. P.W.10 Fakir Mohan Patra is the son of the deceased who stated that on 02.10.1999, the deceased had received a notice from Koira police station to produce two of the appellants in the police station. On the date of occurrence, the deceased along with the appellants came to his house at about 01.00 p.m. and after taking meal/handia, they left for Koira police station. On the next day morning, he got the information that the deceased was lying dead by the side of a road and upon getting JCRLA No. 148 of 2005 Page 8 of 42 [ 9 ] such information, he went to the spot and saw the dead body of the deceased with bleeding injuries on the head. He is also a witness to the preparation of the inquest report vide Ext.11. P.W.11 Kokila Patra is the wife of the deceased who also stated that on the date of occurrence, the deceased proceeded towards Koira police station along with the appellants and on the following day morning, she got information about the death of deceased and accordingly, proceeded to the spot. She was later declared hostile by the prosecution. P.W.12 Prasanta Kumar Pradhan was working as the Scientific Officer, D.F.S.L., Rourkela who, on police requisition, visited the spot of occurrence. He stated to have found extensive blood stain under a Sal tree. He also found a blood stained small stone and dragging mark. He collected blood stained earth, sample earth and one blood stained stone. He examined those materials and proved his report vide Ext.12. P.W.13 Prakash Chandra Pal was working as the Officer in-Charge of Koira Police Station. He is the investigating officer of the case who on completion of investigation, he submitted the charge sheet against the three appellants. JCRLA No. 148 of 2005 Page 9 of 42 [ 10 ] The prosecution exhibited seventeen documents. Ext.1 is the command certificate, Ext.2 is seizure list of clothes of the deceased, Exts.3, 4, 5 and 7 are the seizure lists, Ext.6 is the F.I.R., Ext.8 is the post-mortem report, Ext.9 is the collection of nail clippings and the blood report, Ext.10 is the opinion of the doctor (P.W.8), Ext.11 is the inquest report, Ext.12 is the report of the Scietific Officer (P.W.12), D.F.S.L., Rourkela, Ext.13 is the spot map, Ext.14 is the dead body challan, Ext.15 is the office copy of forwarding of M.Os. to R.F.S.L., Bhubaneswar and Ext.17 is the serological report. The prosecution proved three material objects. M.O.I is the khaki shirt of the deceased with Grama Rakshi badge, M.O.II is the sky colour chadi of the deceased and M.O.III is the khaki full pant of the deceased. Defence Plea: 5. The defence plea of the appellants is one of denial. However, the defence neither examined any witness nor exhibited any document to dislodge the prosecution case
Facts
Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as the documentary evidence on record, the evidence of Medical Officer (P.W.8), the post mortem examination report JCRLA No. 148 of 2005 Page 10 of 42 [ 11 ] (P.W.8) and the inquest report (Ext.11) came to the hold that the deceased suffered a homicidal death. The learned trial Court accepted the versions of P.Ws. 4, 5, 9 and 10, who have stated about the last seen of the appellants in the company of the deceased and further held that a quarrel took place between the appellants on one hand and the deceased on the other. The learned trial Court further held that since the occurrence took place in a secluded place and the dead body was lying in a ditch, in the circumstance, it is very difficult to find out the exact time when the occurrence took place. However, it held that the death must have been occurred after 3.30 p.m. and within 2 to 4 hours from leaving the house of the deceased for the last time. The learned trial Court further held that since the deceased was taking the appellant Sunia Munda @ Kate along with the other appellants to the police station, there must have been some apprehension in their mind for which they might have decided to eliminate the deceased. It is further held that the prosecution case cannot be viewed with suspicion even if the evidence is lacking as regards to the motive on the part of the appellant to kill the deceased. The learned trial Court also took into account that the wearing apparels of the deceased contained human blood of group-B and same blood group was detected on the sky JCRLA No. 148 of 2005 Page 11 of 42 [ 12 ] colour full pant of the appellant Sunia Munda @ Kate and no explanation has been offered by the said appellant as to how the blood group of the deceased got stained with his pant, but simply he has taken denial plea during his examination under section 313 of the Cr.P.C., which is an additional circumstance against the appellant Sunia Munda @ Kate. It was further held that since the appellants Mangra Munda and Gobara Munda were also in the company of the deceased along with the appellant Sunia Munda @ Kate, their sharing common intention in committing the murder cannot be ruled out. The learned trial Court summed up the evidence on record and observed that the following circumstances are available against the appellants in the case:- (i) The deceased suffered homicidal death; (ii) The accused persons were proceeding towards Koira P.S. in the company of the deceased; (iii) The deceased was last seen alive along with the accused persons on the road near Chandiposh road leading to Koira; (iv) A wordy quarrel between the accused persons on the one side and the deceased on the other side was noticed by the witnesses; JCRLA No. 148 of 2005 Page 12 of 42 [ 13 ] (v) The dead body of the deceased was lying in a ditch by the side of Chandiposh road inside Baldihi reserve forest area; (vi) No explanation has been offered by the accused persons as to what happened to the deceased on the way to police station and why without going to police station, they returned back to their village; (vii) The chemical examination report and serological report vide Exts.16 and 17 indicate that the blood group detected on the wearing apparels of the deceased was found on the full pant of the accused Kate @ Sunia Munda. The learned trial Court ultimately concluded that the appellants ghastly committed murder of the deceased, who was the Grama Rakshi, while he was discharging his duty by taking the appellants to the police station on being instructed by his superior officer, i.e., O.I.C., Koira police station and thus, found the appellants guilty under sections 302/201/34 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
P.W.11, we are of the view that the prosecution has not put forth any stong motive on the part of the appellants to do away with the life of the deceased. In the absence of motive, we have to scrutinise the circumstances more carefully. Whether the deceased was last seen alive in the company of the appellants?: 10. Coming to the relevance of ‘last seen theory’ in the instant case, we find that there are five witnesses who deposed about the same and they are P.Ws.4, 5, 9, 10 & 11. P.W.4 Sati Patra has stated that he did not know the appellants but she could identify the appellants in the dock. She JCRLA No. 148 of 2005 Page 21 of 42 [ 22 ] only stated that while she along with co-labourers were engaged in weeding operation in her land, she found the deceased along with three persons proceeding towards Koira and heard that a quarrel ensued between them. She further stated that the distance between the places where she was working and those persons were walking was about 70 to 80 cubits. However, in the cross-examination, she has stated that the voice from the road was not audible from the land where they were engaged in the weeding work and and she did not disclose before any of her family members regarding the quarrel which took place between the deceased and the appellants and she was examined by the I.O. after a month of the occurrence. Therefore, from the evidence of P.W.4, it cannot be said that the appellants were in the company of the deceased and that she was able to hear the quarrel between them. P.W.4 has not stated that P.W.5 was also working with her. However, P.W.5 Padma Patra stated that at about 12 noon on the date of occurrence, while she was carrying out weeding operation with P.W.4, she noticed the deceased with three appellants moving towards Koira Police Station and those three appellants were quarreling with the deceased and P.W.5 identified the appellants in the dock to be those three persons. JCRLA No. 148 of 2005 Page 22 of 42 [ 23 ] She further stated that the appellants were working with her in the mines. She further stated that after finishing the weeding work, she went to her house at about 4.00 p.m. In the cross- examination, however, she has stated that she had no prior acquaintance with the appellants. This statement runs contrary to her evidence in examination-in-chief that the appellants were working as labourers with her in the mines. She further stated that she used to go to her work in the morning hours and return home in the afternoon. From the evidence of the widow of the deceased, who was examined as P.W.11, it appears that at about 3.00 p.m. in the afternoon, the deceased came with the appellants and she served them food and thereafter, the appellants being accompanied by the deceased, went towards Koira police station. In view the timing as stated by P.W.11, it is very difficult to accept the evidence of P.W.5 that at about 12 in the noon, she could see the appellants in the company of the deceased. Moreover, she has stated in the cross-examination that even if somebody shouts loudly on the road, it would not be audible to the place where they were working. Therefore, we are of the view that the evidence of P.W.4 and P.W.5 are no way helpful to JCRLA No. 148 of 2005 Page 23 of 42 [ 24 ] the prosecution to establish that the deceased was last seen alive in the company of the appellants. Before going to analyse the evidence of the other three witnesses to the last seen, it is relevant to discuss the evidence of the doctor (P.W.8), who conducted post mortem examination and noticed the following injuries on the body of the deceased: “External appearance: Average body built man with mouth semi open, eyes closed, blood and brain materials coming out through mouth and nose. Rigor mortis present, decomposition started. External Injuries: (i) Laceratation 2” x 2” x ½” over left ear, (ii) Bruise 1” x 1” over left forehead, (iii) Bruise 1” x 1” over left eye brow & (iv) Laceration 1” x 1” x ½” over left side mandible. On Internal examination: Scalp is lacerated over the left ear. Skull is fractured, left temporal and parietal bone fractured. All the layers of membranes lacerated below the left ear. Blood is collected in the sub-dural space. Left JCRLA No. 148 of 2005 Page 24 of 42 [ 25 ] hemisphere of cerebral cortex is lacerated. Stomach contain semi solid food particles. Cause of death was due to intracranial hemorrhage, shock and laceration of brain. He further opined that all the injuries were ante mortem in nature and may cause the death in ordinary course of nature.” P.W.8 conducted the post-mortem examination over the dead body of the deceased on 04.10.1999 at about 1.30 p.m. and he has opined that the time since death was 12 to 24 hours of the post-mortem examination. Thus, in view of the evidence of P.W.8, the death must have taken place in between 1.30 p.m. on 03.10.1999 to 1.30 a.m. on 04.10.1999. The other three witnesses, who deposed about the last seen, have stated that the deceased was seen in the company of the appellants in the afternoon at about 3.00 p.m. to 3.30 p.m. The dead body was found by P.W.3 near Chandiposh on 04.10.1999 at about 9.00 a.m. by the side of the road. Therefore, the place where the appellants and the deceased were last seen and the place where the dead body was found on the next day were different. The time and place where they were seen together and the dead body was found being not proximate, the non-explanation by the appellants with regard to JCRLA No. 148 of 2005 Page 25 of 42 [ 26 ] the circumstance under which and when they had parted with the company of the deceased cannot be a very crucial circumstance proved against them. The possibility of someone else coming in contact with the deceased after the appellants left his company cannot be completely ruled out. In the case of Anjan Kumar Sarma (supra), the Hon’ble Supreme Court held as follows:- “19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan [Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413] , this Court held that : (SCC p. 719, paras 12 & 15) “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” xx xx xx xx JCRLA No. 148 of 2005 Page 26 of 42 [ 27 ] 15. The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan [Madho Singh v. State of Rajasthan, (2010) 15 SCC 588 : (2012) 4 SCC (Cri) 767] .” 20. In Arjun Marik v. State of Bihar [Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551], this Court held that : (SCC p. 385, para 31) “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law JCRLA No. 148 of 2005 Page 27 of 42 [ 28 ] that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 21. This Court in Bharat v. State of M.P. [Bharat v. State of M.P., (2003) 3 SCC 106 : 2003 SCC (Cri) 738] held that the failure of the accused to offer any explanation in his statement under Section 313 CrPC alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the accused stood unrebutted and thus the appellants were liable to be convicted. 23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of JCRLA No. 148 of 2005 Page 28 of 42 [ 29 ] conviction. The other judgments on this point that are cited by Mr Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under : (SCC p. 776, para 34) “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the JCRLA No. 148 of 2005 Page 29 of 42 [ 30 ] evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For JCRLA No. 148 of 2005 Page 30 of 42 [ 31 ] instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” In the case of Dinesh Kumar -Vrs. State of Haryana reported in 2023 SCC Online SC 564, the Hon’ble Supreme Court held as follows:- “25. The evidence of last seen becomes an extremely important piece of evidence in a case of circumstantial evidence, particularly when there is a close proximity of time between when the accused was last seen with the deceased and the discovery of the body of the deceased, or in this case the time of the death of the deceased. This does not mean that in cases where there is a long gap between the time of last seen and the death of the deceased the last seen evidence loses its value. It would not, but then a very heavy burden is placed upon the prosecution to prove that during this period of last seen and discovery of the body of the deceased or the time of the death of the deceased, no other person but the accused JCRLA No. 148 of 2005 Page 31 of 42 [ 32 ] could have had an access to the deceased. The circumstances of last seen together in the present case by itself cannot form the basis of guilt (See: Anjan Kumar Sarma & Others v. State of Assam). 26. The circumstances of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. Particularly, in the present case when there is no close proximity between circumstances of last seen together and the approximate time of death, the evidence of last seen becomes weak (See: Malleshappa v. State of Karnataka). 27. In Nizam & Anr. v. State of Rajasthan where the time gap between the last seen together and the discovery of the body of the deceased was long, it was held that during this period the possibility of some other interventions could not be ruled out. Where time gap between the last seen and time of death is long enough, as in the present case, then it would be dangerous to come to the conclusion that the accused is responsible for the murder. In such cases it is unsafe to base JCRLA No. 148 of 2005 Page 32 of 42 [ 33 ] conviction on the “last seen theory” and it would be safer to look for corroboration from other circumstance and evidence which have been adduced by the prosecution. The other circumstances here is the so called discovery, and most of these, as we have already discussed, fail to meet the requirement of Section 27 of the Evidence Act. 28. As per the postmortem which was conducted on 12.05.2000 at 4:15 P.M, the death was 48 hours prior to the post mortem, which means it was before 4:00 P.M. on 10.05.2000. Even assuming that the death has taken place, a day earlier i.e. 09.05.2000, still there is a long gap between the last seen which is at 7:00 pm on 08.05.2000 and the morning of 09.05.2000. In the case of State of Goa v. Sanjay Thakran, where in the evidence of last seen, the recovery of dead body was only a few hours before “last seen”, it was not considered reliable. The same was again emphasized by this Court in Ajit Singh v. State of Maharashtra where it was emphasized that the time between victim last seen alive and the discovery of the body of the deceased has to be of close proximity, so that any other person being the author of the crime cannot be ruled out. In this case, even if we take the time between the last seen and the approximate time JCRLA No. 148 of 2005 Page 33 of 42 [ 34 ] of death as per the postmortem, which would go beyond 48 hours preceding the time of postmortem and the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M. 29. The trial court as well as the High Court have lost sight of the vital aspect of the matter. Both the Courts have relied on Section 106 of the Act and have held that since the accused was last seen with the deceased and he has not been able to give any reasonable explanation of his presence with the deceased in his statement under Section 313 of the Cr.P.C., it has to be read against the accused and therefore it has to be counted as an additional link in the chain of circumstantial evidence. In present case in the findings of the trial court and High Court this appears to be the most important aspect which weighed with the trial court as well as the High Court in establishing the guilt of the accused. We are, however, afraid this is a complete misreading of Section 106 of the Act.” In the case of Jaswant Gir (supra), the Hon’ble Supreme Court held as follows:- JCRLA No. 148 of 2005 Page 34 of 42 [ 35 ] “5. Apart from the extra-judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The “last-seen” evidence is sought to be established by the testimony of PW 14. At the outset, we must observe that there is a serious doubt cast on the version of PW 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the “last- seen” version emanating from PW 14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the JCRLA No. 148 of 2005 Page 35 of 42 [ 36 ] irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the “last-seen” evidence, even if the version of PW 14 in this regard is believed. In view of this, the evidence of PW 9 as regards the alleged confession made to him by the appellant assumes importance.” In view of the settled position of law, since we find no other links against the appellants to connect them with the crime, the circumstance of ‘last seen’ itself cannot be a convincing and conclusive factor to convict the appellants for commission of murder of the deceased. Even though, no explanation has been offered by the appellants in their accused statements recorded under section 313 of the Cr.P.C., but in view of the time gap between the appellants were last seen together with the deceased while he was alive and when the JCRLA No. 148 of 2005 Page 36 of 42 [ 37 ] dead body of the deceased was found on the next day at a totally different place, the possibility of other persons coming in contact with the deceased after the appellants left his company cannot be completely ruled out. The decision relied upon by the learned counsel for the State in the case of Ram Gopal -Vrs.- State of Madhya Pradesh reported in (2023) Supreme Court Cases 534, the Hon’ble Supreme Court held as follows: “5. It cannot be gainsaid that when the entire case of the prosecution hinges on the circumstantial evidence, the entire chain of circumstances has to be completely proved, which unerringly would lead to the guilt of the accused and none else. So far as the evidence on record in the present case is concerned, it emerges that it was not disputed that on 19.12.1995 at about 5 PM, the petitioner- accused had taken the deceased Pratap Singh from his house. Thereafter, the deceased and the petitioner were also seen together at the shop of one Shripal at village Arhela by the witness Vijay Singh (PW-4). It was also not disputed that on the next day morning the dead body of the deceased was found lying near one field at village Chachiha. Hence, the death of the deceased Pratap Singh had taken place during JCRLA No. 148 of 2005 Page 37 of 42 [ 38 ] the night hours of 19 th and 20th December, 1995, and that the petitioner was lastly seen with the deceased on the previous evening. Thus, it was the petitioner alone, who knew as to what happened after the evening of 19 th December, 1995. 6. It may be noted that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non- furnishing of the JCRLA No. 148 of 2005 Page 38 of 42 [ 39 ] explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him. 9. In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. 10. So far as the facts in the instant case are concerned, it was duly proved that the death of the deceased was homicidal. It was not disputed that the petitioner had taken the deceased with him on the previous day evening and thereafter JCRLA No. 148 of 2005 Page 39 of 42 [ 40 ] he was also seen with the deceased by the witness Vijay Singh (P.W.4) and the very next day early morning, the dead body of the deceased was found lying in the field at village Chachiha. The time gap between the period when the deceased was last seen with the accused and the recovery of the corpse of the deceased being quite proximate, the non- explanation of the petitioner with regard to the circumstance under which and when the petitioner had departed the company of the deceased was a very crucial circumstance proved against him. Having regard to the oral evidence of the witnesses, the enmity between the deceased and the petitioner had also surfaced. The corroborative evidence with regard to recovery of the weapon – axe alleged to have been used in the commission of crime from the petitioner, also substantiated the case of prosecution.” The factual scenario in the case of Ram Gopal (supra) is totally different from the case in hand, inasmuch as, there are other circumstances against the appellant in that case like enmity between the deceased and the appellant and recovery of the weapon of offence used in the commission of crime from the appellant apart from the circumstance of ‘last seen’. JCRLA No. 148 of 2005 Page 40 of 42 [ 41 ] 11. In the case in hand, though the prosecution has successfully established that the deceased met with homicidal death, but since it is a case based on circumstantial evidence and no motive behind the commission of the crime against the appellants could be proved rather it appears that there was cordial relationship between the appellants and the deceased and that the last seen evidence adduced by the witnesses are not sufficient in itself to come to the conclusion that it is the appellants who committed the crime and further, the findings of the chemical examination report (Ext.17) are also in no way relevant for the two appellants Mangra Munda and Gobara Munda and therefore, we are of the view that the circumstances, which have been established by the prosecution do not form a complete chain and the same does not unerringly points towards the guilt of the appellants Mangra Munda and Gobara Munda. Therefore, it is a fit case where benefit of doubt is to be extended in favour of the appellants. Accordingly, the JCRLA is allowed. The impugned judgment and order of conviction of the appellants under sections 302/201/34 of the I.P.C. is hereby set aside and the appellants are acquitted of such charges. The appellants Mangra Munda and Gobara Munda are on bail. They are discharged from JCRLA No. 148 of 2005 Page 41 of 42 [ 42 ] the liability of their bail bonds and sureties bonds also stand cancelled. Before parting with the case, we would like to put on record our appreciation to Mr. Susanta Kumar Tripathy, learned Amicus Curiae for the appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees, which is fixed at Rs. 7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Priyabrata Tripathy, learned Additional Standing Counsel. S.K. Sahoo, J. …………………………… S.K. Mishra, J. ……………………………… Orissa High Court, Cuttack The 15th February, 2024/Amit/Padma Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Aug-2024 13:19:05 JCRLA No. 148 of 2005 Page 42 of 42
Arguments
Mr. Susanta Kumar Tripathy, learned counsel for the appellants, who was engaged as Amicus Curiae by this Court as per order dated 05.02.2024, argued that even though it is not JCRLA No. 148 of 2005 Page 13 of 42 [ 14 ] disputed that the deceased suffered homicidal death in view of the evidence of the doctor (P.W.8) and other materials available on record, but that there was a quarrel between the appellants on one side and the deceased on the other side, which was noticed by the witnesses so also that the deceased was last seen in the company of the appellants are doubtful features. It is further argued that last seen circumstance itself is not sufficient to convict the appellants, especially when there is no motive behind the commission of the crime. He further argued that the evidence of the wife of the deceased, who was examined as P.W.11, indicates that there was cordial relationship between the appellants and the deceased. Learned counsel further argued that the documentary evidence Ext.7/2, which is an intimation by P.W.13 to the deceased, indicates that it was only the appellant Sunia Munda @ Kate who was called to the police station for compromise of the dispute and therefore, it is not understood as to why and how the appellant Gobara Munda would accompany the deceased to the police station. The learned counsel further argued that even though in the white colour full pant of the appellant Sunia Munda @ Kate, human blood group ‘B’ was detected which blood group was also detected from the wearing apparels of the deceased as per chemical examination report JCRLA No. 148 of 2005 Page 14 of 42 [ 15 ] marked as Ext.17, but since from the wearing of the two appellants, i.e., Mangra Munda and Gobara Munda, no human blood was noticed, the chemical examination report cannot be utilized against them. Learned counsel further argued that since the time gap between the last seen and recovery of the dead body of the deceased was long, it cannot be the sole ground to convict the appellants. To that respect, reliance has been placed on the decisions of the Hon’ble Supreme Court in the cases of Jaswant Gir -Vrs.- State of Punjab reported in (2005) 12 Supreme Court Cases 438, Anjan Kumar Sarma -Vrs.- State of Assam reported in (2017) 14 Supreme Court Cases 359 & Dinesh Kumar -Vrs.- State of Haryana reported in 2023 Supreme Court Cases Online S.C. 564. Mr. Priyabrata Tripathy, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that P.W.4 & P.W.5 have seen the quarrel while the deceased was in the company of the appellants in the afternoon and thereafter, the deceased was not seen alive by anyone and his dead body was found on the next day at about 9 O’ clock in the morning. He further argued that the appellants have not discharged their burden under section 106 of the Evidence Act, as to when they parted with the deceased after they were last JCRLA No. 148 of 2005 Page 15 of 42 [ 16 ] seen and they have simply taken a plea of denial. Learned counsel further argued that though no clinching evidence relating to the motive behind the commission of the crime has been established, but the possibility of the appellants committing the crime, as they were taken to the police station by the deceased, cannot be ruled out. Learned counsel further argued that in view of the finding of the chemical examination report (Ext.17) that the same blood group of the deceased was found on the pant of the appellant Sunia Munda @ Kate, these circumstances form the complete chain to hold the appellants liable for commission of the crime and therefore, the learned trial Court is quite justified in holding the appellants guilty under sections 302/201/34 of the I.P.C. Standards to adjudge strength of circumstances in a case based on circumstantial evidence: 8. It is not dispute that there is no direct evidence in this case and the case is based purely on circumstantial evidence. The Hon’ble Supreme Court has laid down the ‘panchasheel principles’ in the case of Sharad Birdhi Chand Sarda -Vrs- State Of Maharashtra reported in (1984) 4 Supreme Court Cases 116 which are the standard criteria to JCRLA No. 148 of 2005 Page 16 of 42 [ 17 ] adjudge the strength of circumstances advanced by the prosecution to prove a case based on circumstantial evidence. For the sake of clarity, the said principles are reproduced as hereunder: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (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; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence 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.” In the present case, it is to be seen how far the circumstances have been established by the prosecution by JCRLA No. 148 of 2005 Page 17 of 42 [ 18 ] cogent evidence and whether those circumstances form the complete chain unerringly pointing towards the guilt of the appellants or not. Motive behind the commission of crime: 9. In a case of circumstantial evidence, absence of motive is a very significant factor. While elucidating the effect of absence of motive in a case based on circumstantial evidence, the Hon’ble Supreme Court in the case of G. Parshwanath -Vrs.- State of Karnataka reported in (2010) 8 Supreme Court Cases 593 held as follows:- “The argument that in absence of motive on the part of the appellant to kill the deceased benefit of reasonable doubt should be given, cannot be accepted. First of all every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating Judge. Very often a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In a case where the motive alleged against accused is fully established, it provides foundational material to connect the chain of circumstances. It affords a key on a pointer to scan the evidence in the case JCRLA No. 148 of 2005 Page 18 of 42 [ 19 ] in that perspective and as a satisfactory circumstance of corroboration. However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. The absence of motive, however, puts the Court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.” [Emphasis supplied] In the case in hand, the evidence of P.W.11 Kokila Patra, the widow of the deceased indicates that on the date of occurrence, the appellant Mangra Munda came to her house in the morning with a notice from Koira police station and delivered the same to her deceased husband and the deceased told Mangra Munda to go to village Podadihi to call the other two appellants as they were required by the police as per the notice since a quarrel had taken place between the appellant Mangra Munda on the one side and the other appellants on the other side. She further stated that after taking tea, the deceased left for the village Podadihi to call the appellants and at about 3.00 p.m., the deceased came back to his house along with the JCRLA No. 148 of 2005 Page 19 of 42 [ 20 ] appellants and instructed her to serve them food. She further stated that on being so instructed, she served country rice beer and one plate of chicken to the appellants. After taking their meal, the appellants being accompanied by the deceased left for Koira police station. In the cross-examination, P.W.11 has stated that the appellants Kate Munda and Gobara Munda used to call the deceased as ‘Mamu’ (uncle) and they were having good terms with the deceased. The son of the deceased and P.W.11 being examined as P.W.10 has stated that on 02.10.1999, the deceased received a notice from Koira police station to take the appellants, namely, Kate Munda and Gobara Munda to the police station and on 03.10.1999, the deceased went to village Podadihi and came back with the appellants at about 1.00 p.m. and thereafter, the deceased took his meal and the appellants took Handia being served by P.W.11 and then they left for Koira police station. From the evidence of P.W.10 & P.W.11, it appears that there was cordial relationship between the appellants and the deceased. At this stage, the notice which was issued by P.W.13 to the deceased and has been marked as Ext.7/2 needs to be considered. The I.O. (P.W.13) has stated that the said notice was issued to the deceased by him with a direction to JCRLA No. 148 of 2005 Page 20 of 42 [ 21 ] produce the appellant Kate Munda before him and Ext.7/2 also indicates that it was only meant for production of Sunia Munda @ Kate for the purpose of compromise. There is no mention in the notice that the appellant Gobara Munda was also required by P.W.13. Learned counsel for the State argued that since Gobara Munda and Sunia Munda @ Kate are two brothers, the possibility of both of them accompanying the appellant Mangra Munda so also the deceased cannot be ruled out. After carefully assessing the evidence of P.W.10 and