Orissa High Court
{{ 7 }} vs State Of Orissa on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.52 OF 2021 : (A)
AND
CRLA No.625 OF 2023: (B)
In the matter of Appeals under section 374 (2) of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 22.02.2021 passed by the learned Additional Sessions
Judge, Rairangpur in Sessions Trial No.04 of 2017.
----
Pagal @ Durga Beshra
(In JCRLA No. 52 of 2021) .... Appellants
Jitrai Soren @ Bale
(In CRLA No. 625 of 2023)
-versus-
State of Orissa .... Respondent
(In JCRLA No.52 of 2021 &
CRLA No. 625 of 2023)
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Sidhartha Swain,(Advocate)
(In JCRLA No.52 of 2021).
Mr.Jitendra Samantaray,
(Advocate)
(In CRLA No.625 of 2023).
For Respondent - Mr.S.K. Nayak,
Addl. Government Advocate,
(In both the JCRLA & CRLA)
CORAM:
MR. JUSTICE D.DASH
DR.JUSTICE S.K. PANIGRAHI
Date of Hearing : 21.07.2023 : Date of Judgment: 24.07.2023
D.Dash,J. Since both these Appeals are directed against the judgment of
conviction and order of sentence dated 22.02.2021 passed by the learned
Additional Sessions Judge, Rairangpur in Sessions Trial No.04 of 2017
JCRLA No.52 of 2021 & CRLA No.625 of 2023
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arising out of G.R. Case No.300 of 2016 corresponding to C.T. No.1189
of 2016 in connection with Bisoi P.S. Case No.54 of 2016 of the Court
of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),
Rairangpur; those had been heard together for their disposal by this
common judgment.
The Appellants (accused persons) have been convicted for
committing the offence under sections-302/201/34 of the Indian Penal
Code, 1860 (for short, 'the IPC'). Accordingly, each has been sentenced
to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees
Ten Thousand) in default to undergo rigorous imprisonment for six
months for the offence under sections 302 of the IPC and each of them
has also been sentenced to undergo rigorous imprisonment for a period
of five years and fine of Rs.2,000/- (Rupees Two Thousand) in default
to undergo rigorous imprisonment for two months for the offence under
sections 201 of the IPC with the stipulation that the substantive
sentences would run concurrently.
2. On 04.07.2016 one Jogeswar Patra, a Gramrakshi discharging the
duty as such under Bisoi Police Station in the District of Mayurbhanj
received the information from some villagers of village Budhikhamari
that a dead body was lying in the Judia Nala (rivulet). Having received
such information, said Gramrakshi (P.W.21) with the villagers rushed to
the spot and found one dead body lying on the ground with face being
tied with a napkin facing downwards. It was also noticed that there were
severe injuries on the neck. It having been learnt that some unknown
culprit(s) having killed the deceased might have thrown the dead body
inside that Judia Nala which is an isolated place; a written report to that
effect being was lodged by the Gramarakhi (Informant-P.W.21) with the
Officer-in-Charge (O.I.C.) of Bisoi Police Station. The same was treated
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as F.I.R. (Ext.8) and after registration of the case, the O.I.C. (P.W.23)
took up investigation.
In course of investigation, the Investigation Officer (P.W.23)
examined the Informant (P.W.21)and then visited the spot. He prepared
the spot map in presence of the witnesses and examined few other
witnesses. After conducting the inquest over the dead body in presence
of the witnesses, he prepared the report (Ext.1). He then sent the dead
body for post mortem examination by issuing requisition. The waring
apparels of the deceased and later on those of the accused Jitrai were
seized under seizure lists, Ext.14 and Ext.13 respectively. The accused
persons being arrested, it is said that they stated to have kept the Budia
and blood stained Mosquito net (M.O.-I and M.O.-II) in a particular
place (s) and expressed that they would give recovery of the same if
taken to the place. The I.O. (P.W.23) states to have recorded their
statements and it is said that pursuant to the statement, they led P.W.23
and others in giving recovery of the blood stained Mosquito Net and
Budia from the place where they had kept and those were then seized
under seizure list (Ext.7). On 09.10.2016, the Inspector-in-Charge
(I.I.C.) of the Police Station (P.W.24) took up investigation from the
first I.O. (P.W.23). After continuing with the investigation for few days
and sending the incriminating articles for Chemical Examination
through Court and on receiving the report, the second I.O. (P.W.24)
submitted the Final Form on 31.10.2016 placing the accused persons to
face the trial for committing the offence under section under sections
302/201/34 of the IPC.
3. On receipt of the Final Form as above, learned S.D.J.M.,
Rairangpur took cognizance of said offences and after observing the
formalities, committed the case to the Court of Sessions. That is how the
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trial commenced persons by framing the charges for the above
mentioned offences against these accused persons.
4. The prosecution, during trial, in total has examined twenty-four
(24) witnesses. As already stated, the Informant is P.W.21, who had
lodged the F.I.R. (Ext.8). The independent witnesses are P.W.1, P.W.2,
P.W.3, P.W.7, P.W.9, P.W.10, P.W.11, P.W.14, P.W.15 and P.W.19.
Out of the other witnesses, the important are P.W.16 and P.W.17 as they
are the witnesses to the seizure of the Budia and blood stained Mosquito
net at the instance of the accused. The Doctor, who had conducted the
autopsy over the dead body of the deceased has been examined as
P.W.22 whereas the P.W.23 and P.W.24 are the two I.Os.
Besides leading the evidence by examining the witnesses, the
prosecution has proved several documents which have been admitted in
evidence and marked Ext.1 to Ext.16. The important of those are the
F.I.R. (Ext.8), the inquest report (Ext.1), Post Mortem Examination
Report (Ext.9). Further important documentary evidence is the so-called
statement of the accused persons recorded by P.W.23 which has been
admitted in evidence and marked Ext.4 and Ext.5 and the relevant
seizure list showing seizure of the articles to produce. In the Trial, the
Budia and blood stained Mosquito net seized in course of investigation
were produced as Material Objects (M.O.-I and M.O.-II).
The plea of the defence is that of complete denial and false
implication. However, no evidence, either oral or documentary, has been
tendered from the side of the accused persons despite opportunity being
provided in that regard.
5. The Trial Court on going through the evidence pilotted by the
prosecution having first of all said that the death of Narayan was
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homicidal in nature, has found the prosecution to have established the
charge against the accused persons proving the incriminating
circumstances through clear, cogent and acceptable evidence in making
the chain complete in every respect leaving no other hypothesis other
than the guilt of the accused persons. Accordingly, the accused persons
have been convicted for having intentionally caused the death of
Narayan and they have been sentenced as afore-stated.
6. Learned counsels for the Appellants (accused persons) did not
dispute the nature of death of Narayan to be homicidal. He, however,
submitted that the evidence relied as regards two circumstances which,
according to the prosecution, are incriminating, on being joined is said
to make the chain of events complete ruling out all the hypothesis other
than the guilt of the accused persons have not been properly appreciated
and when such evidence on their plain reading do not establish the
circumstances in support of which those have been tendered, the finding
of guilt against the accused persons as has been returned by the Trial
Court is vulnerable. He further submitted that in so far as the last seen
theory is concerned, the evidence of the witnesses are in variance with
one another and the gap between the last seen and death being about
three days, the evidence required for establishing the fact that deceased
and the accused were last seen in coming over the time lag stands as the
incriminating circumstance are highly wanting, He, therefore, submitted
that the said circumstances having not been established by the
prosecution beyond reasonable doubt and also when the so-called
seizure of that Gudia and blood stained Mosquito Net at the instance of
the accused having not been proved through clear, cogent and
acceptable evidence, the accused persons are entitled to be acquitted.
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7. Learned counsel for the Respondent-State supported the finding
of guilt as has been returned by the Trial Court holding these accused
persons liable for committing the offence under section 302/201/34 of
the IPC. He submitted that series of witnesses when have consistently
stated that the deceased after having gone with the accused-Durga when
did not come back and his dead body was ultimately recovered after few
days, as the accused persons are not providing any explanation as to
what happened after the deceased went with them, the Trial Court has
rightly taken that as one of the most important incriminating
circumstance. He further submitted that said proven fact that the
deceased and accused were seen last in the company of each other being
taken with the evidence of recovery of the Budia (M.O.I) and Mosquito
net (M.O.-II) at the instance of the accused persons and as it is the
medical evidence that with that Buida (M.O.-I), the injuries noticed on
the dead body of Narayan were possible, the Trial Court did commit no
mistake in convicting the accused persons for having intentionally
caused the death of Narayan.
8. Keeping in view the submissions made, we have carefully gone
through the impugned judgment passed by the Trial Court. We have also
extensively travelled through the depositions of all the prosecution
witnesses (P.Ws.1 to 24) and have perused the documents admitted in
evidence and marked exhibits (Exts.1 to Ext.16) from the side of the
prosecution.
9. The term circumstantial evidence defined by Peter Murphyas
evidence from which the desired conclusion may be drawn which
requires the Tribunal of fact not only to accept the evidence presented
but then to draw an inference from it. The term circumstantial evidence
in India was used by Sri James Stephen for the first time stating that
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these facts depend on other facts and exist if it is proved that the other
fact existed. This means that the inference is drawn according to the
reasonable prudent man based upon pre-exiting fact that has already
been proved. Thus the circumstantial evidence does not establish
complete guilt until every evidence is negating the innocence of the
accused. The whole chain of fact and circumstance of the case should be
so complete that from the same the existence of principal fact can
legitimately be inferred or presumed and no suspicion or conjecture
comes in the minds of the Court regarding the guilt of the accused when
he can be convicted on the basis of circumstantial evidence.
The term 'circumstantial evidence' has not been sued directly in
the Evidence Act. However, in section-3 of the act, the definition of the
word 'proved' reads that if the existence of any fact is so probable
which a prudent man will believe is to the exist than that is considered to
be proved. This implies that the admissibility of circumstantial evidence
that is based on logical inferences that direct evidence and
circumstantial evidence are at par if the whole chain of events which
happened collectively point unerringly at the guilt of accused. But if
there is doubt that the accused is innocent and the chain of event is not
complete then the benefit of the doubt has to go in favour of he accused.
10. In case of Sudama Pandey V. State of Bihar; (2002) 1 SCC 679,
the following points have been stated to be kept in mind for holding the
matter to have been proved with the aid of circumstantial evidence.
(a) Circumstances from which the inference had been drawn
should be fully proved that they existed;
(b) All the facts that have been proved support the hypothesis
of the guilt of accused;
JCRLA No.52 of 2021 & CRLA No.625 of 2023
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(c) The chian of circumstances should be well connected and
thus be completed so that it is conclusive; and
(d) The circumstances should toss out every possibility of the
accused of being innocent.
11. Coming to the last seen in the theory doctrine, it be noted that this
theory is found upon the principle of probability, cause and connection
as no fact exists or takes place in isolation. Basically, it means that if an
event happens that other event also occurs which are the probable
consequences of the major event or is related to it either retrospectively
or prospectively. These inferences or presumptions are drawn logically,
according to how a reasonably prudent man will connect the dots is the
prevailing scenario. It has its root with section -7 of the Indian Evidence
Act called the 'Doctrine of Inductive Logic'. That states that if any fact
related to the occasion cause or effect lead to the circumstance in which
that thing occurred or it provided an opportunity in the occurrence of
that thing then those facts will be relevant and in the last seen theory
also a person who was last present with the victim would have a
reasonable opportunity to commit the crime.
12. This presumption of fact taken under section 114 of the Evidence
Act under which the Court can presume that certain facts exist, if some
other facts are proved to be in cases of natural events, human conduct
and public and private business. As for example if a person was the last
person seen with another just before his murder, then it can be
presumed, that such a person murdered the other under this theory since
that person had adequate scope and opportunity to commit the crime. Be
that as it may, the presumption is not considered as conclusive proof of
the guilt of the person and those are rebuttable. It only shifts the onus
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upon the person to prove that he is innocent which is an exception in the
criminal law as the burden of the proving the guilt of the accused always
lies upon the prosecution. Though the last seen theory relieves the
prosecution of the onus of proving the guilt yet it is weak evidence and
it needs to be corroborated with other factors like if there is motive with
the person who was last seen with the deceased or he could have even
inflicted the kind of injury that caused the death.
In cases of Jaswant Gir V. State of Punjab; (2005) 12 SCC 438, it
has been held by the Apex Court that if other links are not present to
corroborates the theory, then it is not safe to solely base the finding on
this theory. The fact of last seen should also be supported by other facts
in such a way that the circumstances are unerringly determinative in
nature and conclusively prove the guilt of the person. The Court thus has
to be on guard when deciding these kind of matters as even minute
details can change the whole scenario of the case.
13. The settled law for a case to be held proven entirely based on
circumstantial evidence, as has been detailed out in catena of decision
are that:-
(a) every circumstances that leads to the guilt of the accused
should be proved beyond reasonable doubt by the
prosecution; and
(b) all the circumstances should cogently depict the guilt of the
accused leaving no incongruities, suspicions so as to lead to
the establishment of the guilt beyond reasonable ground
and to in a half-backed situation.
JCRLA No.52 of 2021 & CRLA No.625 of 2023
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14. In case of Digambar Vaishnab V.State of Chhattisgarh: (2019) 4
SCC, it has been held that there should be reasonable proximity between
the time of seeing the person and recovery of the body to point the
needle towards the person last seen with the deceased. However simply
that they were last seen together cannot be the sole criteria to convict the
accused. Last seen theory with other obtained circumstances negating
the innocence of the accused can lead to base the conviction banking
upon the doctrine of last seen. In some cases though there are huge time
gap between the occurrence of the event and the time when last seen
together still if the prosecution establishes the fact that no other person
could have interfered or intervened as there was exclusive possession of
the accused to the place where the incident occurred, then based on this,
also the last seen theory can be established and presumption can be
taken despite a huge time gap. (Ref:-Satpal Singh V. State of Haryan:
(2010) 8 SCC 714.
15. Keeping in mind the above said legal position, in order to address
the rival submission in judging the sustainability of the Trial Court's
finding holding the accused guilty of the charges, let us now have a look
at the evidence to see that the same if pass through the tests as aforesaid.
16. As per the prosecution case, one evening accused-Durga when
called the deceased Narayan to his house, they went together and three
days thereafter the dead body of Narayan was recovered from the
rivulet. This, according to the prosecution, is the first most important
circumstance. Therefore, we are now called up to examine the evidence
in support of the last seen theory. P.W.1 is a friend of the deceased. He
states that on one evening Narayan had gone to his house and there
accused-Durga came and called him to his house. So, both of them went
together.
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It be stated here that the deceased Narayan is a resident of village
Pokharia whereas the accused Durga is a resident of village Judia. It is
his further evidence that thereafter Narayan did not return to his house.
This P.W.1 is a resident of village Jamiradiha and when deceased is a
resident of village Pokhari, he was not supposed to return to the house of
P.W.1 and therefore, the evidence of this P.W.1 that the deceased did
not return back to his house is of absolutely no significance when he
does not say that the deceased had told that he would return to the house
of P.W.1 after attending some events in the house of accused-Durga.
When he too does not state to have gone to the house of the accused; his
evidence if taken that the deceased did not return to his own house is not
acceptable. This P.W.1 is also not stating as to when he saw the dead
body. The fact remains that the dead body was found on 04.07.2016,
which is said to be three days after the deceased Narayan and accused
Durga were together seen last.
P.W.2 is none other than the wife of P.W.1. He has stated in the
same line as that of P.W.1. She states to have no knowledge as to which
place the accused-Durga and deceased-Narayan went from their house.
When P.W.2 has stated that accused Durga came and called Naryan to
go to his house to see his daughter who was suffering from fever, that is,
however, not the evidence of P.W.1. So the very purpose of accused
proceeding to the house of accused Durga is only being stated by P.W.1
and his wife (P.W.2) is not supporting that which ordinarily she was
supposed to. That being so, a doubt arises in mind as regards the
presence of both P.W1 and P.W.2 at the relevant time in their house.
P.W.3 is the daughter of P.W.1 and P.W.2. She does not state as to
citing what reason, the accused Durga called deceased Narayan to go
with him.
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It be stated here that deceased-Narayan is the maternal uncle of
P.W.3 and thus the brother of P.W.2 and brother-in-law of P.W.1. None
of these three witnesses have stated that after deceased Narayan left
their house and did not return to their house whether they had inquired
anything about the deceased Narayan as to what happened to him which
was quite natural and obvious. They do not state to have gone to the
house accused-Durga to ask him regarding the whereabouts of Narayan
nor even to the house of Narayan to ask the family members. It is also
not stated by them as to whether they had seen the dead body of
Narayan after having been informed about the recovery of the same by
Narayan and there to have immediately disclosed before others to that
might's happening when they say deceased Narayan left their house
with accused Durga. Therefore, the evidence of these three witnesses, in
our considered view, are of no use to the prosecution in support of the
projected theory of last seen.
P.W.7 is another witness, who only knew deceased-Narayan
being her nephew (husband's elder brother's son). It is her evidence that
on one Saturday Narayan had left the house by saying that he was going
to village Jamirdiha and thereafter did not return and next Tuesday
Police called her and the daughter of Narayan to identify the dead body
in the Sub-Divisional Hospital, Rairangpur. This evidence of P.W.7
does not run at all stand in support of the last seen theory. He does not
say even to have seen accused with Narayan. She simply says that
Narayan having told that he was going to village Jamirdiha, had left the
house. The evidence of the daughter of the deceased (P.W.8) is only in
respect of identification of the dead body and nothing else. The nephew
of Narayan (P.W.9) has stated that few days before the death (it means
before the recovery of the dead body) Narayan had left the house to
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attend the weekly market at Bisoi. This again goes completely different
from what has been stated by P.W.7 and that has also been stated by
P.W.11 who is another nephew of Narayan. This P.W.11 has however
stated that Narayan was known as a Gunia (Witch Doctor) From this
judicial notice of the situations prevalent in the rural areas populated by
mostly members of Scheduled Tribe that such persons known as Gunia
(/witch Doctor) face very rough weather in their life with so many
friends and equal number of foes too. With the above evidence on
record, we find that the last seen theory does not at all stand in support
of the prosecution case.
17. Coming to the other circumstance with regard to the recovery of
Budia and Mosquito net, the prosecution is relying upon the evidence of
P.W.16 and P.W.17 as also the I.O. (P.W.23). It has been stated by
P.w.16 that when both the accused persons were present at the Police
Station, they confessed their guilt. This part of the evidence of P.W.16
which has also been stated by P.W.17 is inadmissible in the eye of law
in view of the provision contained in section 25 of the Evidence Act.
Furthermore, none of these witnesses is stating as to why and for what
purpose they had been to the Police Station on that day and were present
right at the relevant time. It is not stated by them that at what time they
saw the accused persons at the Police Station. P.W.16 then straightway
says that he went with the Police and the accused where the accused
persons showed the place of concealment of Buida and Mosquito net.
He again states that accused Jitrai gave recovery of that Gudia from a
straw heap and accused Durga gave recovery of Mosquito net from
house. Having not stated as to where the statements of the accused
persons were recorded, he has directly proved the statements of accused
Jitrai and that of accused Durga. The evidence of P.W.17 is almost the
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replica of the evidence of P.W.16. These two persons are of another
village and how they knew the accused persons is also not stated by
them.
With the above evidence, let us now turn to the evidence of
P.W.23 (the I.O.). He says that on 06.07.2016, he arrested accused
Durga from his father-in-law's house situated at village Masinabila
under the jurisdiction of Bangiriposi Police Station (which adjoins the
jurisdiction of Bisoi Police Station). The arrest is said to have been
made at 11.15 p.m., He has stated that after arrest accused Durga
confessed to have committed the crime with accused Jitrai and therefore,
accused Jitrai was arrested from his house. So, the only material against
the accused Jitrai is the statement of accused Durga before the police
and thereafter, the so-called statement of accused Jitrai himself in
confessing his guilt after being arrested and leading P.W.23 in giving
recovery of the incriminating articles. It is then stated by P.W.23 that
during interrogation both of them agreed for discovery of weapon of
offence and so the place of occurrence. We putting a full stop here just
think that this P.W.2 thereby meant to say that on being asked or
proposed they agreed. Having said this, we do not think it proper to
proceed further as such evidence of this witness (P.W.23) who is the
I.O. of the case is enough to discard the circumstance projected by the
prosecution as to the recovery of the Buida and Mosquito net at the
instance of the accused persons. The evidence on this score are wholly
unsatisfactory. We find that the Trial Court has committed grave error in
admitting and accepting the evidence of P.Ws.16, 17 and 23 being read
together within the ambit under section-27 of the Evidence Act.
Thus, in view of the discussion of evidence as above, we find
ourselves in disagreement with the finding of the Trial
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Court that the prosecution has established the charges against the
accused persons beyond reasonable doubt. Therefore, we are constrained
to hold that the judgment of conviction and order of sentence passed by
the Trial Court cannot be sustained and are liable to be set aside.
18. In the result, the Appeals are allowed. The impugned judgment of
conviction and order of sentence dated 22.02.2021 passed by the learned
Additional Sessions Judge, Rairangpur in Sessions Trial No.04 of 2017
are hereby set aside.
Since both the Appellants (Pagla @ Durga Beshra and Jitrai Soren
@ Bale and are in jail custody, they be set at liberty forthwith, if their
detention is not required in connection with any other case.
(D. Dash)
Judge.
Dr. S.K. Panigrahi,J I agree.
( Dr. S.K. Panigrahi)
Judge.
Himansu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 24-Jul-2023 15:48:02
JCRLA No.52 of 2021 & CRLA No.625 of 2023
