Dusashan Bag vs State Of Orissa
2023 Latest Caselaw 2744 Ori

                     ORISSA HIGH COURT : C U T T A C K
                                  JCRLA No.11 of 2005
         From the judgment and order dated 23.11.2004 passed by Shri G.C.
         Tripathy, Sessions Judge, Phulbani in S.T. Case No.1 of 2001.


         Dusashan Bag                                               : Appellant

                                          -Versus-

         State of Orissa                                            : Respondent


         For Appellant                                  : Mr. G.S. Pani
         For Respondent                                 : Mr. S.S. Pradhan,
                                                          Addl. Govt. Adv.

                                          JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S. SAHOO Date of hearing: 13.03.2023 :: Date of Judgment : 04.04.2023

Per Biswanath Rath, J.

1. This Jail Criminal Appeal at the instance of one of the convicts

involves a challenge to the judgment and order of conviction passed by

the learned Sessions Judge, Phulbani in Sessions Trial No. 1 of 2001

thereby convicting the accused person i.e. the Appellant herein along with

the other accused and sentencing both of them to undergo imprisonment

for life.

2. Prosecution story as revealed from the case record is as follows:-

// 2 //

Deceased, Uchhaba Majhi and his brothers Udhaba Majhi, P.W.8

and Purna Chandra Majhi, P.W.4 were residing separately in mess and

properties. The servant of the deceased, Uchhaba Majhi prior to the

incident involved herein kidnapped a girl, namely Moti, who appears to

be the daughter of the sister of the deceased, Uchhaba Majhi. Deceased,

Uchhaba Majhi lodged an F.I.R. against the Offender. In the

investigation, accused Senapati Mahakud was arrested and detained in the

jail custody. As the case story further reveals, deceased Uchhaba Majhi

was also a witness against the accused, Senapati Mahakud in a criminal

case started against the accused for unlawful possession of arms. One and

half months prior to the occurrence, accused, Senapati Mahakud after

coming out of jail threatened the deceased, Uchhaba Majhi to kill him.

On 9/10th February, 2000 night, some unknown persons committed theft

from the house of the deceased and killed the deceased, Uchhaba Majhi

as well as his wife, Maharani Majhi and threw away both the dead bodies

in river Rahul. In the morning of 10.02.2000, the wife of Purna Chandra

Majhi and wife of Udhaba Majhi (P.W.8) while taking bath in the same

river found the dead body of Maharani Majhi at the bathing Ghat. Both of

them found a rope tied around the neck of the deceased, Maharani Majhi

and the other end of the rope has been found to be tied against the tree.

Both of them also found some injuries on the neck and back of the

// 3 //

deceased, Maharani Majhi. Further, they also found an Axe lying near the

spot. Both of them informed this matter to P.Ws.4 & 8, i.e., their

husbands. P.W.8 rushed to the spot and identified the dead body to be that

of Maharani Majhi and also noticed some incised, wounds on back and

neck of the deceased. On his returning back to the house of Uchhaba

Majhi, he found, Uchhaba Majhi is absent in his home but found the

house open and the articles in the house were lying here and there.

Noticing this, he immediately rushed to Tumudibandha Police Station and

in consultation with the Sarpanch of the Village (P.W.2) he lodged a

written report. The O.I.C., Tumudibandha P.S. registered a case and took

up investigation.

3. During investigation, the O.I.C examined the Informant, proceeded

to the spot and examined further witnesses. Since it was night, the O.I.C

engaged a Constable to keep watch on the dead body. The O.I.C also

noticing the dead body of Uchhaba Majhi floating in the river rescued the

dead body on the next date. Inquest was made and the dead body was sent

to Madanpur Rampur Hospital for post-mortem. Accused persons were

searched, but Senapati Mahakud could not be apprehended. Later on the

S.D.P.O, Balliguda took up the investigation from the O.I.C. During the

investigation he re-examined the witnesses and arrested the accused,

Senapati Mahakud, who confessed to have killed both the deceased

// 4 //

persons and gave recovery of the crow-bar and other articles. For further

revelation in the investigation process, the S.D.P.O also implicated the

other accused, Dusashan Bag, who is alleged to have assisted Senapati

Mahakud in killing the deceased. In the process the other accused persons

were also arrested. On completion of the investigation, the S.D.P.O.

submitted the charge-sheet resulting in trial.

4. Defense plea was that one of complete denial.

5. To establish their case, prosecution examined P.Ws.1 to 12.

Defendants examined none. Prosecution exhibited documents marked as

Ext.1 to Ext.34. Defense exhibited no documents. Similarly prosecution

also marked some material objects marked as M.O.-I to M.O.-XV. There

is no material object marked by the Defense.

6. Undisputedly there is no direct evidence against the accused

persons and prosecution case is based on circumstantial evidence. The

trial court has analysed the evidence relied on by the prosecution i.e.

evidence of P.Ws.1, 4 & 8 who have all attempted to establish

involvement and the motive behind such murder. Trial Court considered

evidence of P.W.10 on his corroborating the fact of previous rivalry

between the accused and the deceased. It is, in these premises prosecution

was able to prove the motive against the accused person Senapati

Mahakud. Also the prosecution proved the accused immediately after

// 5 //

occurrence of such incident was found absent and he belongs to village of

the deceased persons. Further on the basis the extra judicial confession of

the accused to have killed both the deceased before P.W.10, in presence

of P.W.7, gave recovery of weapon, leading to recover of an ornament

(nose flower) stated to have taken from the body of the deceased

Maharani Majhi. Accused led to his house to give recovery of nose flower

and thus Sessions Court came to observe that there is no doubt that

accused Senapati Mahakud was the assailant.

Similarly examining the involvement, if any, of other accused

Dusashan Bag, the learned Trial Court came to find material establishing

the said accused to be on leave from his Office at Bhubaneswar from

3.02.2000 to 10.02.2000 vide Ext.4 & Ext.5 and the occurrence took

place on 9/10.02.2000 night. The Sessions Court here also relied heavily

on P.W.1, 4 & 8 regarding previous rivalry between co-accused with

deceased Uchhaba Majhi, which lead to the death of the deceased being

killed by the co-accused. The Sessions Court here took aid of evidence of

P.W.7 to find material establishing accused-Dusashan was very much

available in the same village on the date of occurrence. This witness is

also claimed to have seen many occasions the deceased Uchhaba Majhi

and accused Senapati Mahakud meeting each other on several dates.

Further P.Ws.1, 4 & 8 have also claimed to have seen accused Dusashan

// 6 //

Bag visiting the house of Uchhaba Majhi during this period. There is also

material establishing identification of this accused by P.Ws.1, 4 & wife

and sons of the accused Senapati Mahakud in the T.I. parade that had

taken place. Further there is also identification of this accused by P.Ws.7

& 8 on 6.04.2000.

It is only based on the above circumstantial evidence that the trial

ended the matter in conviction of both the accused persons.

7. In challenge to the judgment and order of sentence only at the

instance of one accused namely Dusashan Bag Mr. Pani, learned counsel

for the appellant submitted that the judgment and order of sentence

suffers infirmity on account that there is no examination of star witness

that was available for the prosecution. Further, P.W.6 in the test

identification parade identified somebody else and not this accused.

Further there is also no completion of chain of incriminating sequence of

events to lead to conviction of this accused. Further on the premises that

conviction and order of sentence is based on circumstantial evidence, Mr.

Pani, learned counsel contested the matter and submitted the conviction

and order of sentence so far it relates to this accused must go.

In further advancing his submission Mr. Pani, learned counsel for

the Appellant also taking this Court to the relevant portions of the

discussions on evidence by the Sessions Court as described in the written

// 7 //

note of submission on behalf of the sole appellant contended that there

has been wrong appreciation of evidence and failure in appreciating the

lacunas in the evidence of the prosecution involved. Reading through the

depositions of each of the prosecution witness, it is submitted that the

order of conviction and sentence must go.

8. In his opposition Mr. Pradhan, learned AGA taking this Court to

the case of the prosecution, corroboration of the claim of the prosecution

with evidence of P.Ws.1, 4 & 8, further reading through the evidence of

P.Ws the learned AGA attempted to justify the conviction and order of

sentence granted by the trial court. In response to the contentions raised

by the learned counsel for appellant Mr. Pradhan, learned AGA

contended that for the strong corroboration of the incident through the

above witnesses there is no sustainable ground to interfere in the order

passed by the learned Sessions Judge. On the premises that there is

availability of strong material with the trial court, Mr. Pradhan, learned

AGA contended that the order of conviction and sentence remains

justified and thus claimed that appeal should be dismissed for having no

material.

9. It be stated here that this appeal is confined to the order of

conviction and sentence in S.T. No.1 of 2001, but at the instance of

Dusashan Bag the 2nd accused. P.Ws. 4 & 8 were husbands of two women

// 8 //

who for the first time saw deceased Maharani Majhi near the river and

found injuries on her neck. They informed P.Ws.4 & 8 their respective

husbands who rushed to spot and identified the dead body. P.Ws.4 & 8

both have corroborated the versions of their wife and informed them to

have seen the dead body of Maharani Majhi lying at the spot with injuries

and informed both of them. The observation of P.Ws.4 & 8 have been

corroborated in para 2 in their statements. Undisputedly, there are

circumstantial evidence and witnesses. In his evidence P.W.4 stated that

he suspects accused Senapati Mahakud to have committed the crime and

he was involved in several cases including a rape case. On Dusashan Bag

this witness submitted that the other man standing in the dock used to

come to the house of his brother, the deceased, so he also suspected this

man to have killed the deceased in connivance with accused Senapati

Mahakud. In examination in chief in para 10 P.W. 4 also claimed to have

heard about Senapati Mahakud openly declaring to kill Uchhaba Majhi.

P.W.4 in cross admitted to be the bother of the deceased Uchhaba Majhi.

10. On going through the evidence of P.W.8 the other circumstantial

witness strongly relied on by the prosecution as well as the Sessions

Court, this Court finds, he is the 2nd man who proceeded to the spot to

find-out the dead body being informed by his wife and another lady, both

of whom had already seen the dead body of Maharani Majhi. In Para 2 he

// 9 //

said to have seen Maharani Majhi lying dead. He also visited Uchhaba

Majhi's house to search him but did not find him there. He along with

P.W.4 went to Tumudibandha Police Station and reported the matter,

which was marked as Ext.22/1. Then both of them with Police moved to

the spot where they also found dead body of Uchhaba Majhi floating in

the river.

11. In his attempt to bring home the motive of the accused persons to

kill the deceased the P.W.8 has stated that about one to one & half

months prior to the occurrence accused Senapati Mahakud was released

from jail. This accused had told him that he will definitely commit

murder of Uchhaba Majhi as Uchhaba Majhi had filed a case against him

and he, therefore, suspected, accused Senapati Mahakud has committed

murder. So far it relates to accused Dusashan Bag, the witness has stated

that Dusashan Bag was regularly coming to the house of the deceased. He

came to learn that accused Dusashan Bag and deceased brother Uchhaba

Majhi were jointly doing business involving husk and two days prior to

death of Uchhaba Majhi and his wife the accused Dusashan Bag came to

their village and stayed in the house of accused Senapati Mahakud.

12. This Court finds, the only other witness who has been heavily

relied on by the prosecution as well as the trial court is the P.W.1

appearing to be Bhagyalaxmi Majhi, who appears to be the sister-in-law

// 10 //

of Uchhaba Majhi one of the deceased and also one of the lady member

who along with her sister-in-law Ichhabati for the first time saw the dead

body of Maharani Majhi the other deceased near the river when both of

them went to take bath. She appears to have after coming back from the

spot informed her husband about dead body of Maharani Majhi lying at

the spot and the husband of Bhagyalaxmi Majhi as well as Ichhabati

moved to the spot, could recognize the dead body being the wife of

Uchhaba Majhi. The witness has also stated that the eldest brother of her

husband went to the Police Station to lodge F.I.R. To establish the motive

behind the killing, this witness also stated that prior to the incident Deba a

servant of the deceased Uchhaba Majhi along with accused Senapati

kidnapped and raped Moti who happened to be the niece of Uchhaba

Majhi being the daughter of Uchhaba's sister and that Deba is also an

accused in the rape case as abettor. After being released he was

threatening to Uchhaba Majhi that he will kill him. This statement of

P.W.1 appears to be not towing with the evidence of P.Ws.4 & 8 in their

attempt to establish the motive behind the killing and they have made the

statement like a parrot stating that Senapati Mahakud has committed the

crime because he was involved in several cases including a rape case and

so far as the other accused is concerned, P.W.4 stated that he belongs to

village-Jarasingha thus suspected to have committed murder along with

// 11 //

accused Senapati Mahakud. This Court finds, the entire case of the

prosecution is based on suspicion and in an attempt to somehow complete

the chain of incidents that lead to death of the two deceased.

13. Apart from the above, on further scrutiny of the evidence this Court

finds, all the vital witnesses i.e. P.Ws.1, 4 & 8 are not only relations of

the deceased but they also are all circumstantial witnesses and post

occurrence witnesses. There is undisputedly no eye witness. Reading the

F.I.R. story and the statement of all these witnesses, this Court finds,

there is no completion of chain establishing its case beyond all reasonable

doubts implicating the accused persons. There being no eye witness, only

witness being circumstantial witnesses, each of such witness only

suspected the accused persons to have killed the deceased persons and for

there is no evidence presented by the prosecution to complete the chain in

establishing the fatal incidents of death to have been caused by the

accused appellant, this Court holds, there cannot be conviction based only

on extra judicial confession by one of the accused and further an accused

leading to give recovery of an ornament worn by one of the deceased.

14. This case appears to be based on last seen theory as each of the

witness strongly relied on by the prosecution as well as the Sessions

Court. In the opinion of this Court last seen theory in itself is not

sufficient to bring home the guilt of accused. The onus of proving the

// 12 //

guilt still needs to be satisfied by the prosecution and it needs to be

corroborated with strong factors like; if there is motive with the persons

who was last seen with the deceased or he could have even inflicted kind

of injury that caused the death? This Court having gone through the

evidence of vital witnesses like P.Ws.1, 4 & 8 finds, all these witnesses

more particularly P.Ws.4 & 8 though stated to have seen the accused

persons at some point of time even one of the accused person having

business with one of the deceased but there is no further details as to what

was the time gap of last seen together and the death of the deceased. This

Court finds, the Sessions Judge miserably failed in appreciating this vital

aspect of the matter.

15. This Court takes note of some of the decisions of the Hon'ble apex

Court and finds, in the case of Jaswant Gir Vrs. State of Punjab : (2005)

12 SCC 438 (at para 7) in 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 the P.W. in

this regard is believed. The fact of last seen has to be supported by the

other proved facts in such a way that the circumstances are unerringly

determined and conclusively prove the guilt of the person. The Court thus

has to be on guard when deciding these kinds of matters, as even minute

detail can change the whole scenario of the case. Similarly in the case of

// 13 //

Digamber Vaishnav and Anr. Vrs. State of Chhattisgarh : (2019) 4 SCC

522 the Hon'ble apex Court came to hold that there should be reasonable

proximity between the time of seeing the person and recovery of the body

to point the needle of suspicion towards the person last seen with the

deceased. However, they were last seen together cannot be the sole

criteria to convict the accused. The last seen theory with other obtaining

circumstances negating the innocence of accused can lead to base the

conviction banking upon the doctrine of last seen. If the prosecution

establishes the fact that no other person could have interfered or

intervened as there was exclusively possession of the accused to the place

where the incident occurred, then based on this also last seen theory can

be established and presumption can be taken despite huge time gap.

16. This Court finds, both the aforesaid judgments have clear

application to the case at hand. Through a catena of decisions this Court

finds, the settled principle of law so far it relates to conviction based on

circumstantial evidence are as follows:-

(a) Every circumstances that leads to guilt of the accused should

be proved beyond reasonable doubt by the prosecution.

(b) All the circumstances cogently depict the gilt of the accused

leaving no incongruities, suspicions so to lead to establish the guilt

beyond all reasonable doubt and not in a half-backed situation.

// 14 //

17. A reference may be made here to a judgment of Hon'ble apex

Court in the case of Sharad Biridhichand Sarda Vrs. State of

Maharashtra : AIR 1984 SC 1622, where the Hon'ble apex Court while

dealing with the circumstantial evidence held, onus is always on the

prosecution to prove that chain is completed and the infirmity or lacunas

in prosecution cannot be cured by false defense or plea. In the case at

hand even taking the statements of P.W.1, P.W.4 & P.W.8 taken together

does not subscribe the view that the death of deceased is on account of

involvement of Senapati since dead and or the surviving appellant herein.

The prosecution witnesses have even brought two different stories in the

alleged involvement of two different accused persons, both the stories can

never meet at least to throw light on common intention with both the

appellants to kill both the deceased herein.

18. In the above circumstance, this Court finds, prosecution failed to

establish its allegation on motive. There is failure of establishing the

charges against the appellants to the hilt conferring benefit of doubt on

the appellant accused and further there is casual examination of the

prosecution evidence available on record. In the final outcome We allow

the appeals and set aside his conviction and sentences recorded by the

impugned judgment and order dated 23.11.2004 passed by the learned

Sessions Judge, Phulbani in S.T. Case No.1 of 2001 and We acquit the

// 15 //

sole appellant named Dusashan Bag from all the charges framed against

him. As the other appellant Senapati Mahakud having died in the

meantime, the appeal by him has abated vide order no.3 dated 4.01.2011.

This Court here records that the sole appellant herein has been enlarged

on bail by order no.2 dated 24.12.2009. For foregoing reasons We are of

the considered view that the impugned judgment of conviction and order

of sentence cannot be sustained in the eye of law. In the result this appeal

is allowed and the judgment of conviction and order of sentence dated

23.11.2004 passed in S.T. Case No.1 of 2001 respectively passed by the

Sessions Judge, Phulbani in S.T. Case No.1 of 2001 are hereby set aside.

Since the appellant Dusashan Bag is on bail, the bail bond stands

discharged.

19. The Jail Criminal Appeal (JCRLA) succeeds. There is, however, no

order as to costs.

(Biswanath Rath) Judge M.S. Sahoo, J.....................

(M.S. Sahoo) Judge Orissa High Court, Cuttack.

The 4th day of April, 2023// Ayaskanta Jena, Senior Stenographer