Orissa High Court
Sumanta Rana vs State Of Odisha on 11 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.285 of 2022
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 24th January, 2022 passed by the learned
Sessions Judge, Sonepur in S.C No.57-33 of 2011-2013.
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Sumanta Rana .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr.P.K.Mishra,
(Advocate)
For Respondent- Mr.P.K.Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :25.07.2023 :: Date of Judgment:11.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of
conviction and the order of sentence dated 24.01.2022 passed by the
learned Sessions Judge, Sonepur in S.C No.57-33 of 2011-2013, arising
out of G.R. Case No.191 of 2011, corresponding to Tarava P.S. Case
No.55 of 2011 of the Court of learned Sub-Divisional Judicial
Magistrate (SDJM), Sonepur.
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The Appellant (accused) has been convicted for commission of
offence under section 302/201 of the Indian Penal Code, 1860 (in short,
'the IPC'). Accordingly, he has been sentenced to undergo rigorous
imprisonment for life and pay a fine of Rs.1000/- (Rupees One
Thousand) in default to undergo Rigorous Imprisonment for three
months for the offence under section 302 of the IPC and rigorous
imprisonment for one year and to pay fine of Rs.500/- (Rupees Five
Hundred); in default to further undergo rigorous imprisonment for two
months for the offence under section 201 of the IPC.
2. Prosecution case is that on 11.07.2011, Satyaban Podh (P.W.15)
heard the news of missing son of his son Kalakanhu@Kanhu from his
house. So he immediately lodged a missing report at Kamsara Police
Outpost under Tarava Police Station. The said fact was entered in the
Station Diary Book of the Police Out Post and all got engaged in search
of Kanhu. When none was getting any clue, after three days, one
Dharma Nag (P.W.8) came and informed that something being kept in a
sack had been buried on the south-eastern side of the land of one Dhruba
Rana. Then matter was informed to the police. That buried sack was
recovered and the dead body was identified to be that of Kanhu. Since it
was learnt that the deceased was last seen in the company of this
accused, suspicion as to the involvement of this accused came up in
mind. The investigation accordingly progressed. The dead body of
Kanhu was sent for post mortem examination.
3. In course of investigation, witnesses being examined, the accused
was apprehended on 16.07.2011. It is stated that while in police custody,
he made a statement to have kept Bhujali over the 'Bhara' of his house.
It is stated that pursuant to the said statement, the accused led the police
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and other witnesses to his house and gave recovery of that Bhujali which
was seized under the seizure list. The seized incriminating materials
were sent for chemical examination through Court and finally on
completion of investigation, the Investigating Officer (P.W.24)
submitted the Final Form placing this accused and two others namely
Upendra Rana and Shanti Rana, who happen to be the father and mother
of this accused to face the Trial for committing the murder of Kanhu and
causing disappearance of evidence.
4. Learned SDJM, Sonepur receiving the Final Form as above, took
cognizance of the offence and after observing the formalities committed
the case to the Court of Sessions. That is how the Trial commenced by
framing charge against the said offence against the accused.
5. In the Trial, the prosecution in total has examined as many as
twenty four (24) witnesses. As already stated P.W.5 is the informant,
who is the father of the deceased. P.W.1, P.W.2, P.W.3, P.W.4, P.W.5,
P.W.7, P.W.8, P.W.13, P.W.16, P.W.17, P.W.18 and P.W.20 are the co-
villagers of the informant. P.W.6 and P.W.11 are the relative of the
informant. P.W.9 is a Home Guard and seizure witness. P.W.10,
P.W.12, P.W.14 and P.W.21 are the seizure witnesses. P.W.19 is the
Doctor who had conducted post mortem over the dead body of the
deceased. P.W.22 is the Tahasildar-cum-Executive Magistrate and the
Investigating Officer has come to the witness box as P.W.24.
6. The prosecution besides leading the evidence by examining above
the witnesses, has also proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.25. Out of those, the
important are; the FIR, Ext.7, Inquest Report, Ext.1, Spot Map, Ext.16,
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Post Mortem Report, Ext.9, statement of accused Sumanta Rana under
section 27 of Evidence Act admitted in evidence and marked as Ext.8.
7. The defence plea is that of complete denial and false implication.
This accused has however, not tendered any evidence in support of her
defence.
8. The Trial Court upon examination of the evidence of Doctor
(P.W.19), who had conducted the post mortem over the dead body of
Kalakanhu as well as the evidence of the I.O (P.W.24), who had held
inquest over the dead body and their reports has come to a conclusion
that the death of Kalakanhu was homicidal in nature. Having said so
upon examination of other witnesses as to the incriminating
circumstances standing against the accused, it has been held that the
prosecution has established the charge only against this accused under
section 302/201 of the IPC. Accordingly, this accused alone has been
convicted thereunder and sentenced as aforestated.
9. Learned counsel for the Appellant (accused) submitted that the
case of the prosecution is based upon the circumstantial evidence.
According to him, the circumstances projected by the prosecution have
not been proved through clear, cogent and acceptable evidence and,
therefore, the question of those circumstances taken together making the
chain complete in every respect ruling out all the hypothesis other than
this accused does not arise. He, therefore, submitted that the Trial Court
has gone wrong in finding this accused to be guilty of committing the
offence under section 302/201 of the IPC.
10. Learned counsel for the State submitted all in favour of the
finding of the Trial Court as to the guilt of the accused. According to
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him, the prosecution through P.W.2 and P.W.3 having proved that the
deceased was last seen in the company of this accused and as this
accused is not coming forward with any explanation as to what
happened with the deceased thereafter, the Trial Court has rightly
convicted this accused.
11. Keeping in view the submissions made, we have carefully read
the judgment of conviction impugned in this Appeal. We have also gone
through the depositions of all the witnesses P.W.1 to P.W.24. We have
also perused the documents which have been admitted in evidence and
marked Ext.1 to Ext.25.
12. Before going to judge the sustainability of the finding of guilt of
this accused as has been returned by the Trial Court, since the
prosecution case rests upon the circumstantial evidence, it would be apt
to place the settled position of law first. In a case based on
circumstantial evidence, the circumstances relied upon the support of the
conviction must be fully established and the chain of evidence furnished
by those circumstances must be so complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused. The circumstances from which the conclusion of the guilt is to
be drawn are not only to be established but also that all the
circumstances so established should be of conclusive nature and
consistent only with the hypothesis of guilt of the accused and should
not be capable of being explained by any other hypothesis, except the
guilt of the accused.
Furthermore, all the circumstances cumulatively taken together
must lead to the only irresistible conclusion that the accused alone is the
perpetrator of the crime.
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13. Bearing the above legal principles in mind the evidence with
regard to the first important circumstance projected by the prosecution
that the deceased was last seen with accused Sumanta needs
examination.
It is the prosecution case that when search was being made to
trace out the deceased (Kanhu), P.W.2 and his wife (P.W.3) told that
they had seen the deceased with the accused Sumanta and, therefore,
Sumanta was suspected to be knowing the whereabouts of deceased
Kanhu.
P.W.2 in his evidence has stated that on a Monday when he was
tending cattle on the land of Dhruba Rana of their village and it was
around 10/11 am he had seen accused Sumanta and deceased Kanhu
sitting there and taking Khajuri and therefore on that day around 3 p.m
when he found the parents of the deceased searching for Kanhu and
were not getting the clue, he stated to have seen the deceased Kanhu
with the accused Sumanta.
The dead body of Kanhu was recovered three days thereafter.
This witness has stated that it was around 10/11 am, when he was
tending the cattle, he had seen both but he has not stated as to around
what time he left the field. It is also not stated by this witness P.W.2 that
when he left the field with his cattle whether accused Sumanta was
sitting there or that they had left before he left the field. This P.W.2 have
stated to have not been examined by the I.O at any point of time. This
witness admits to have not talked with accused Sumanta or Kanhu.
When it is said by this P.W.2 that occurrence took place two years
before he deposed in Court; during cross-examination he has stated to
have seen them 10 to 12 years back.
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The next witness P.W.3 who is the wife of P.W.2 has stated to
have seen Kanhu playing at the outskirt of their village and on the next
day dead body of Kanhu was found on the land of Dhruba rana. This
P.W.3 does not state that she had seen Kanhu with this accused Sumanta
taking Khajuri. He is also not stating as to who are the others then with
Kanhu when he was playing at the outskirt of the village. P.W.2 when
states that three days after, he had seen the accused and Kanhu; the dead
body of Kanhu was recovered. This P.W.3 states that she had seen
Kanhu a day before the recovery of the dead body. P.W.3 also states to
have not been examined by the I.O (P.W.24). P.W.15 when says that
both P.W.2 and P.W.3 told that they had seen Kanhu taking Khajuri
with accused Sumanta, P.W.3 is totally silent on that score. Although
this P.W.3 has been cross-examined by the prosecution with the
permission of the Court, we find no such material to have been elicited
from her in support of the said circumstance as stated by P.W.2. With
above disparity in the evidence of P.W.2 and P.W.3, we are surprised to
note that the Trial Court has gone to record the finding that the
prosecution has established the last seen theory by proving the fact that
Kanhu (deceased) was last seen in the company of accused Sumanta.
This circumstance thus having not been proved at all, the question of the
accused coming to explain in the matter further is not warranted.
14. The next important circumstance what we find is the recovery of
the Bhujali from the house of the accused Sumanta pursuant to the
statement made by him while in police custody. Without going to look
at the evidence of any other witness when we first glance at the evidence
of the I.O (P.W.24), we find that this accused Sumanta was arrested on
16.07.2011 after the dead body was recovered on 12.07.2011. He has
stated that after arresting the accused, he interrogated him in presence of
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two witnesses namely Baikuntha Kuanr and Bipin Das who have been
examined as P.W.13 and P.W.18 respectively. His evidence is that
accused Sumanta while in custody confessed to have concealed the
weapon of offence i.e. Bhujali on the Bhara of his house and then he
confessed that if he would be taken to the place of concealment, he
would give recovery of the said weapon of offence and accordingly,
accused Sumanta led him and others to the place and gave the weapon to
him. This P.W.24 is not stating as to where he interrogated the accused
Sumanta and where he gave the statement and where it was recorded as
under Ext.8. His evidence that accused confessed that he concealed the
weapon of offence after interrogation gives rise to an impression in our
mind that it was not the voluntary statement of the accused. If the
accused upon interrogation said about the concealment of the weapon, it
pre-supposes that this P.W.24 has asked him the question relating to the
manner of commission of the offence and directly implicating him.
Therefore, the evidence of P.W.24 does not satisfy the basic tests for
admissibility and acceptability under the provision in evidence
contained in section 27 of the Evidence Act as to the fact of recovery of
Bhujali pursuant to the statement of this accused Sumanta. Furthermore,
that the evidence of P.W.18 when is seen, it is found that he has simply
said that Bujali was discovered on the basis of the statement of the
accused while he was in police custody. He says that accused had not
only given the statement but had led the police to the place of
concealment of bhujali in his presence. This witness does not state as to
where said statement was given by the accused and where it was
recorded by the I.O (P.W.24) and wherefrom the journey started to the
particular place and how recovery was given. This witness is also not
stating as to who brought out the weapon and from which place. It is his
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evidence that he was called to the police station by the I.O (P.W.24) on
the said day around 9 am when Baikuntha Kuanr, Raghab, Sisir were
also present at that time and the accused Sumanta too was at the police
station. Basing upon above evidence, it is not believable that accused
Sumanta while in police custody had given his statement as to his
keeping of that weapon and to have led P.W.24, P.W.19 and others to
the place of concealment in giving recovery of the weapon. The
circumstance as to recovery of the weapon pursuant to the statement of
the accused Sumanta while in police custody is also found to have not
been established by leading clear, cogent and acceptable evidence.
15. Having held as above, we find that the other circumstance as to
seizure of wearing apparels of the accused Sumanta from his house
containing blood stains of human origin would not be enough to hold
that the prosecution has established the charge against the accused
beyond reasonable doubt their circumstantial evidence, as according to
us the two other circumstance such as the abscondance of the accused
and the motive as has been stated by the father of the deceased even
being accepted as laid are not completing the chain of events to
conclude that a cumulative view leads to conclude the guilt of the
accused, not capable of being explained by any other hypothesis.
16. For the aforesaid discussion of evidence, we are of the considered
view that the trial court's finding holding the accused to have committed
the murder of Kalakanhu@Kanhu is not sustainable in the eye of law
and therefore, the judgment of conviction and order of sentence
impugned in this Appeal are liable to be set aside.
17. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 24.01.2022 passed by the learned
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Sessions Judge, Sonepur in S.C No.57-33 of 2011-2013 are hereby set
aside.
The Appellant (accused) be set at liberty forthwith, if his
detention is not warranted in connection with any other case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 11-Aug-2023 18:16:45
