Orissa High Court
Dillip Pradhan vs State Of Orissa on 4 March, 2021
HIGH COURT OF ORISSA ; CUTTACK
JCRLA NO.84 0F 2005
From the judgment and order of conviction dated 12.4.2005
passed by the learned Ad hoc Addl. Sessions Judge, Fast
Track Court, Athagarh in S.T. Case No.332 of 2004.
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Dillip Pradhan ... Appellant
Versus
State of Orissa ... Respondent
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For Appellant : Mr. Sabyasachi Mishra and
Mr. Sougat Dash
(Amicus Curiae)
For Respondent : Sk. Zafarulla,
Addl. Standing Counsel
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P R E S E N T:
MR. JUSTICE S.K.MISHRA
AND
MISS JUSTICE SAVITRI RATHO
Date of Hearing and Judgment:4th March, 2021
S.K.Mishra,J. The sole appellant-Dillip Pradhan assails his
conviction under Section 302 of the Indian Penal Code
(hereinafter referred to as the "Penal Code" for brevity) by
the learned Ad hoc Addl. Sessions Judge, Fast Track
Court, Athagarh in S.T. Case No.332 of 2004 by virtue of
the judgment dated 12th April, 2005. He has been sentenced
to undergo rigorous imprisonment for life. The appellant
has been acquitted of the charges under Sections 25 and 27
of the Arms Act.
2. The prosecution case is that the deceased Ashok
Biswal, on 17.1.2004 had gone to village Mandiapalli
along with the appellant. Since he did not return, his
brother Saroj went to Mandiapalli to enquire regarding his
whereabouts. In the village Mandiapalli, Saroj was
informed by Jhunu Pradhan that she had seen the deceased
along with the company of the appellant-Dillip Pradhan as
they were proceeding towards Mandap Mundia field side
and the appellant was holding a gun. (Jhunu Pradhan has
not been examined in this case). She further disclosed that
after some time Dillip alone returned to his home.
Subsequently, the mother of the deceased, P.W.2, got
information from one Purushottam Rout that the deceased
has been murdered and his dead body was lying at Mandap
Mundia forest with gun shot wound. P.W.2-Gouri Biswal
lodged an F.I.R. before the O.I.C., Baramba Police Station
on 19.1.2004. A criminal case was registered for the
offence under Section 302 of the Penal Code against the
appellant and investigation of the case was taken up.
3. During course of investigation, the O.I.C., Baramba
Police Station, P.W.12, examined the informant and other
witnesses, recorded their statements, held inquest on the
dead body of the deceased, dispatched the dead body for
post mortem examination, arrested the appellant, recorded
the statement of the appellant under Section 27 of the
Indian Evidence Act and the appellant gave recovery of the
weapon of offence, i.e, S.B.M.L. (country made gun) and
after obtaining medical opinion as well as ballistic report
submitted, charge sheet against the appellant under Section
302 of the Penal Code and Section 25 and 27 of the Arms
Act.
4. The appellant took the plea of simple denial.
5. In order to prove its case, the prosecution has
examined twelve witnesses and exhibited thirteen
documents and two material objects. The defence, on the
other hand, did not examine any witness. It also did not
exhibit any document to prove its case.
6. At this stage, there is no dispute that the prosecution
has not presented any eye witness to the occurrence. The
entire prosecution case is based on circumstantial evidence.
The circumstances relied upon by the prosecution as
accepted by the learned Sessions Judge to have been
brought home beyond reasonable doubt are as follows:
(i) Homicidal nature of the death of the
deceased.
(ii) Death of the deceased was due to gun shot
injury.
(iii) Last seen of the appellant with the
deceased.
(iv) Discovery statement made under Section 27
of the Indian Evidence act.
(v) The Ballistic report and motive for
committing the crime.
7. We have heard both Mr. Sabyaschi Mishra and Mr.
Sougat Dash, learned Amicus appointed by this Court.
Arguing on each of the circumstance, learned counsel
appearing as Amicus in this case would argue that three
important aspects of the circumstantial evidence are not
established beyond reasonable doubt by the prosecution in
this case.
8. The first circumstance which has been challenged by
the learned counsel for the appellant is the motive to
commit the crime. The prosecution has put forth the illicit
relationship of the deceased with one Ranju Pradhan, a
cousin sister of the appellant, to be the motive driving the
appellant to commit the murder of the deceased. The
second aspect is that the appellant was not being paid by
the deceased against his work as a labourer in the house of
the deceased.
9. However, after careful examination of the
evidence on this score, we are of the opinion that all the
statements made by the prosecution witnesses including
P.W.4-Pramod Pradhan are hearsay evidence which are not
admissible in evidence. The most important aspect is that
Ranju Pradhan has not been examined in this case. No
witness stated that they have direct knowledge regarding
the illicit relationship of the deceased with Ranju Pradhan.
10. There is no direct material to show that the deceased
failed to pay the wages of the appellant. All the materials
available on record are hearsay. Though P.W.2 has stated
that the accused was working in her house she does not
state about the failure of the deceased to pay the wages of
the appellant. So, in our considered opinion the prosecution
has not proved the circumstance of nature beyond all
reasonable doubt. In other words, it has not been
established firmly by cogent evidence leaving no doubt in
the mind of the Court.
11. The third circumstance which is relied upon by
the learned Amicus is the 'last seen' of the deceased with
the appellant. The very prosecution case presented before
the learned trial Judge is that on 17.11.2004, Saturday, at
about 11 A.M. the deceased was approached by the
appellant and they went to village Mandiapalli, the
deceased did not return. On the next date, Saroj Biswal, the
younger brother of the deceased, went to Mandiapalli, on
enquiry one young girl namely Jhunu Pradhan stated that
Ashok and Dillip (the deceased and appellant) went
towards the field. As per the prosecution case, the last seen
of the deceased was with the appellant in village
Mandiapalli by one Jhunu Pradhan. However, during
course of trial, the prosecution improved upon the case and
tried to create a case of circumstantial evidence of the last
seen theory of the deceased along with the appellant from
the village of Benudharpur and presented a case that from
Benudharpur they went to Mandap Mundai forest.
Moreover, the evidences of P.Ws.2,4,7 and 9 reveal major
contradictions regarding the appellant being 'last seen'
with the deceased.
12. In the case of Hanumant Govind Nargundkar
and another v. State of Madhya Pradesh; reported in 1952
(2) SC 343, the Hon'ble Supreme Court has held that in
dealing with circumstantial evidence the rules specially
applicable to such evidence must be borne in mind. In such
cases there is always a danger that conjecture or suspicion
may take the place of legal proof and, therefore, it is right
to recall the warning addressed by Baron Alderson to the
jury in Reg. v. Hodge (1838) 2 Lewin 227 where he said:
"The mind was apt to take a pleasure in
adapting circumstances to one another,
and even in straining them a little, if need
be, to force them to form parts of one
connected whole; and the more ingenious
the mind of the individual, the more
likely was it, considering such matters, to
overreach and mislead itself, to supply
some little link that is wanting, to take
for granted some fact consistent with its
previous theories and necessary to render
them complete."
In the said reported case the Hon'ble Supreme Court
further held that it is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established, and
all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved.
13. Applying these principles to the case in hand, we
find evidence regarding 'last seen' of the deceased with the
appellant from village Benudharpur is shrouded with
contradictions and inconsistencies. It cannot be said that
the prosecution has proved this circumstance conclusively.
14. The next circumstance challenged by learned
Amicus in this case is the discovery of the weapon of
offence i.e. S.B.M.L. (country made gun) on the discovery
statement given by the appellant under Section 27 of the
Evidence Act. It is admitted at this stage by both the parties
that no separate statement under Section 27 of the
Evidence Act has been recorded by the Investigating
Officer.
15. In this connection the reported case of Suresh
Chandra Bahri v. State of Bihar; AIR 1994 SUPREME
COURT 2420 is relied upon by both the sides. In that
reported case also no separate statement of the appellant
was recorded. When the matter came before the Hon'ble
Supreme Court, it was held by the Hon'ble Supreme Court
that non-recording of the disclosure statement separately
will not adversely effect the case of the prosecution. But
the Hon'ble Supreme Court further held that the
ingredients of Section 27 of the Indian Evidence Act were
proved by the prosecution. The ingredients are that (1) the
person giving information must be an accused of the
offence and (2) he must be in police custody.
16. Applying the principles of the present case, we
have examined the seizure list which purportedly the
records, the discovery statement of the appellant while in
police custody admissible under Section 27 of the Indian
Evidence Act, which has been marked as Ext.1. At the
bottom of the Ext.1 the circumstance of seizure has been
reflected by the I.O. that the appellant while in police
custody and confessed that he has murdered the deceased
by means of a gun and that he will show the spot of
occurrence and produced the gun before the witness.
17. This statement does not confirm to the
requirement of Section 27 of the Indian Evidence Act.
Because in a discovery statement the person in custody
must give the information about the place of concealment.
In other words the information must be given by the
appellant regarding the place of concealment of the
weapon of offence. In this case, there is no such statement
even in the seizure list prepared by the Investigating
Officer. So, in our considered opinion that the ingredients
necessary to attract Section 27 of the Indian Evidence Act
are not available in this case, so it cannot be relied upon.
18. Keeping in view the fact that the prosecution has
not been able to establish the three major circumstances out
of the five relied upon by the learned Addl. Sessions Judge,
we are of the opinion that in this case there is no complete
chain of circumstances unerringly pointing towards the
guilt of the appellant. Therefore, we are not inclined to
confirm the judgment of conviction and order of sentence.
19. Hence the appeal is allowed. The judgment of
conviction and order of sentence passed by the learned Ad
hoc Additional Sessions Judge, Fast Track Court,
Athagarh in S.T. Case No.332/2004 for the offence under
Section 302 of the Indian Penal Code are hereby set aside.
The appellant be set at liberty forthwith without any
further delay, if his detention is not required in any other
case.
T.C.Rs. be returned immediately.
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S.K.Mishra, J
Savitri Ratho,J.
I agree.
......................
Savitri Ratho, J
Orissa High Court, Cuttack
Dated 4rd March, 2021/A.K.Behera.
