Orissa High Court
Anil Kujur vs State Of Odisha on 8 September, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.79 of 2005
An appeal under section 374 Cr.P.C. from the judgment and
order dated 31.03.2005 passed by the 2nd Adhoc Additional
Sessions Judge, Sundargarh in Sessions Trial No.24/111 of 2004.
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1. Anil Kujur
2. Rantho Tanty
@ Jayapuria ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr. Nilamadhab Bisoi
For Respondent: - Smt. Saswata Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA
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Date of Hearing and Judgment: 08.09.2023
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By the Bench: The appellants Anil Kujur and Rantho Tanty @
Jayapuria faced trial in the Court of learned 2nd Adhoc Additional
Sessions Judge, Sundargarh in Sessions Trial No.24/111 of 2004
// 2 //
for commission of offences under sections 302/34 and 201/34 of
the Indian Penal Code (hereinafter 8I.P.C.9) on the accusation
that on 09.11.2003 at about 10.00 p.m. in village Bhagatpada,
Kansabahal, they committed murder of one Bhaja Kindo
(hereinafter 8the deceased9) and threw his dead body on the
railway track in order to cause disappearance of the evidence in
furtherance of their common intention.
The learned trial Court vide impugned judgment and
order dated 31.03.2005 found both the appellants guilty under
the aforesaid charges and sentenced each of them to undergo
rigorous imprisonment for life.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter 8F.I.R.9) presented by Rama Kindo (P.W.6)
before the Officer in-charge of Kansabahal Out Post, Kansbahal
on 24.11.2003, is that on 09.11.2003 at about 10.00 p.m., the
deceased who was his younger brother came on a bicycle along
with the appellants to his house and asked his sister to give him
Rs.10/- (rupees ten), but the sister of the deceased refused to
pay the money, for which all of them went to the house of a
neighbour, namely, Jeera Lakra (P.W.5) and thereafter they
went away. It is stated that the deceased was a cowman and he
// 3 //
was staying in the house of Terenga Kindo (P.W.7) in village
Dipatoli and occasionally he was visiting his own house. On the
next day, the deceased did not come to his house. The informant
and his family members remained under an impression that the
deceased might have gone to the house of P.W.7 for which they
did not search for him. On 10.11.2003, one naked dead body of
a person was found on the railway track near Kansabahal by the
G.R.P.S., Rourkela police and they registered U.D. case no.37 of
2003 and seized the body and sent it for post mortem
examination. On 12.11.2003, some local boys while tending
cows found the cycle of P.W.7 lying in a nala and they kept it in
the house of one Golta Bada. Hearing about the recovery of the
cycle, P.W.7 came to the house of Golta Bada and indentified his
cycle which the deceased had taken with him while leaving his
house. P.W.7 along with P.W.6 came to G.R.P.S., Rourkela where
they identified the photographs of the dead body as that of the
deceased and ascertained further that the dead body had been
sent for post mortem examination. Thereafter, P.W.6 came back
to his village with P.W.7 and disclosed about the matter before
others. The appellants being confronted confessed that after
consuming liquor, they had committed murder of the deceased
by strangulating his neck and laid the dead body between the
railway tracks near Kansabahal and also concealed the wearing
// 4 //
apparels of the deceased. It is further stated that the villagers
were calling the mother of the informant as 8witch9 and
threatening her and abusing her in case any villager was falling
ill.
The written report presented by P.W.6 was sent to
the Inspector in-charge of Rajgangpur police station for
registration of the case and accordingly, the Inspector in-charge
of Rajgangpur police station registered Rajgangpur P.S. Case
No.167 dated 24.11.2003 under sections 302/201/34 of I.P.C.
and directed the Sub-Inspector in-charge of Kansabahal Out
Post, namely, Mayadhar Rout (P.W.10) to take up investigation,
who had already taken up preliminary steps of investigation.
During the course of investigation, P.W.10 examined
the informant (P.W.6) as well as other witnesses, visited the
spot, prepared the spot map (Ext.11) and seized an old Avon
cycle from the house of Golta Bada as per seizure list Ext.12 and
also collected the relevant documents concerning the connected
U.D. Case No.37 of 2003 of G.R.P.S., Rourkela. P.W.10 arrested
the appellants on 26.11.2003 and while in custody of police, they
confessed their guilt and after recording of the statements of the
appellants under section 27 of the Evidence Act, the wearing
apparels of the deceased and the stones (weapons of offence)
// 5 //
were seized from the place of concealment at the instance of the
appellants. The I.O. (P.W.10) also seized the wearing apparels of
the appellants as per seizure list Ext.15. He also issued
requisition for collection of the blood sample and nail clippings of
both the appellants on 27.11.2003 and on production by
constable A. Prahan, he seized the same as per seizure list
Ext.16. On 02.12.2003, P.W.10 gave the seized cycle in the zima
of P.W.7 by executing zimanama and the seized articles were
kept in Malkhana of Rajgangpur police station and a request was
made to the J.M.F.C., Rajgangpur to send the seized exhibits for
chemical examination. P.W.10 received the chemical examination
report dated 30.04.2004 issued by the Director, S.F.S.L.,
Bhubaneswar and on completion of investigation, he submitted
charge sheet under sections 302/201/34 of the I.P.C. against the
appellants.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned trial Court charged the
appellants under sections 302/34 and 201/34 of the I.P.C. on
28.09.2004 and since the appellants refuted the charges,
pleaded not guilty and claimed to be tried, the sessions trial
// 6 //
procedure was resorted to prosecute them and establish their
guilt.
Prosecution Witnesses & Documents Exhibited By
Prosecution:
4. During the course of trial, in order to prove its case,
the prosecution has examined as many as ten witnesses.
P.W.1 Dr. Meera Sasmal was the Assistant Surgeon
attached to Panposh S.D. Hospital, who conducted the post
mortem examination on the dead body of the deceased and
11.11.2003 and proved her report vide Ext.1. On receipt of the
query made by the investigating officer relating to the possibility
of the injuries sustained by the deceased by the seized stones,
she gave her opinion vide Ext.2.
P.W.2 Letha Xaxa was the ward member of
Bhagatpada and he did not support the prosecution case for
which he was declared hostile by the prosecution.
P.W.3 Mithu Banchhor was the Grama Rakhi, but he
also did not support the prosecution case.
P.W.4 Rama Xaxa, P.W.5 Jeera Lakra and P.W.8
Sukra Kindo, who are the co-villagers of the informant (P.W.6),
did not support the prosecution case for which they were
declared hostile by the prosecution.
// 7 //
P.W.6 Rama Kindo is the informant and the elder
brother of the deceased. He narrated about the incident that
took place in the evening hours on 08.11.2003 but he was also
declared hostile by the prosecution.
P.W.7 Terenga Kindo was the employer of the
deceased. He narrated about the incident that took place on
08.11.2003 but he was also declared hostile by the prosecution.
P.W.9 Chandra Sekhar Sahoo was the Sub-Inspector
of Police attached to G.R.P.S., Rourkela, who enquired U.D. Case
No.37 of 2003, held inquest over the dead body lying on the
down track in between Kansabahal and Kalunga after taking
photographs and prepared inquest report (Ext.7) and sent the
dead body for post mortem examination.
P.W.10 Mayadhar Rout was the S.I. of Police, the In-
charge of Kansabahal Out Post, who is the Investigating Officer
of the case.
The prosecution exhibited eighteen documents. Ext.1
is the P.M. report, Ext.2 is the report of query, Ext.3 is the
confessional statement of the appellants, Ext.4 is the F.I.R.,
Exts.5, 5/1 and 5/2 are the photographs, Ext.6 and Ext.11 are
the spot maps, Ext.7 is the inquest report, Ext.8 is the dead
body challan, Ext.9 is the command certificate, Ext.10 is the
// 8 //
receipt in respect of records of U.D. Case, Ext.12 is the seizure
list in respect of an old Avon cycle, Ext.13 is the seizure list in
respect of stones, Ext.14 is the seizure list in respect of wearing
apparels of the deceased, Ext.15 is the seizure list in respect of
wearing apparels of the appellants, Ext.16 is the seizure list in
respect of blood sample and nail clippings of the appellants,
Ext.17 is the office copy of forwarding letter and Ext.18 is the
C.E. report.
Defence Plea:
The defence plea of the appellants is one of denial
and it was pleaded that since the appellants were accusing the
mother of the informant and the deceased to be a 8witch9, they
have been falsely implicated in the case.
Findings of the Trial Court:
5. The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that there
is no eye witness to the occurrence and the entire case of the
prosecution rests upon circumstantial evidence. The learned trial
Court summed up the following circumstances adduced by the
prosecution to establish the guilt of the appellants:-
a) The deceased was last seen with the accused
persons before his death;
// 9 //
b) Dead body of the deceased was found lying on the
railway track in a naked condition near
Kansabahal in between two railway lines;
c) The cycle, which the deceased was carrying, was
found in a nala;
d) Ante mortem lacerated injury on the face of the
deceased, bone deep wound on the occipital
region of the head of the deceased and bleeding
from both the nostrils and ears, were found by the
autopsy surgeon;
e) The accused persons confessed their guilt before
the informant and other villagers; and
f) The accused persons while in custody of police,
gave recovery of the wearing apparels of the
deceased and the stones (weapons of offence)
from the place of concealment.
While adjudicating the last seen theory, the learned
trial Court has held that the version of P.W.6 appeared to be
clear, cogent and trustworthy and the prosecution has
conclusively established the circumstance consistent with the last
seen theory. So far as the recovery of the dead body and the
cycle is concerned, the learned trial Court has held that from the
// 10 //
evidence of P.W.6 and P.W.7 so also from the evidence of the
I.O. (P.W.10), the prosecution has proved the recovery of the
dead body of the deceased from the railway track as well as
recovery of cycle carried by the deceased from a nearby nala.
The learned trial Court further held that though the doctor
(P.W.1), who conducted post mortem examination opined that
ante mortem injuries were found on the person of the deceased
but she has not given any opinion regarding the cause of death
of the deceased and thus, medical evidence is not clear or
conclusive. So far as extra judicial confession of the appellants
before P.W.6 is concerned, it was held that the appellants had
confessed their guilt before P.W.6, however, such confession
does not unerringly point towards the guilt of the appellants. It
was further held that through the evidence of the I.O. (P.W.10),
the prosecution has proved the recovery and seizure of the
wearing apparels of the deceased as well as the weapon of
offence at the instance of the appellants under section 27 of the
Evidence Act. The learned trial Court further held that absence of
any material to establish the motive or mens rea behind the
crime, does not assume any significance. It was further held that
the appellants have committed murder of the deceased in
furtherance of their common intention and caused disappearance
of the evidence of murder by laying the dead body on the railway
// 11 //
track in a naked condition and by concealing the wearing
apparels of the deceased as well as the weapon of offence and
accordingly, held the appellants guilty under sections
302/201/34 of the I.P.C.
Contentions of the Parties:
6. Mr. Nilamadhab Bisoi, learned counsel appearing for
the appellants contended that since it is a case which is based on
circumstantial evidence and the circumstances proved by the
prosecution do not form a complete chain so as to unerringly
point towards the guilt of the appellants, the learned trial Court
erred in convicting the appellants. The evidence of the witnesses
are contradictory and the evidence of P.W.6 should not have
been relied upon to prove the last seen theory aspect and the
manner of death as per the extra judicial confession deposed to
by P.W.6 runs contrary to the finding of the post mortem report
proved by P.W.1. Learned counsel further argued that if these
two circumstances are not accepted, the other circumstances are
not sufficient in themselves to establish the guilt of the
appellants and therefore, it is a fit case where benefit of doubt
should be extended in favour of the appellants.
Smt. Saswata Patnaik, learned Additional
Government Advocate appearing for the State of Odisha, on the
// 12 //
other hand, supported the impugned judgment and contended
that there is nothing to disbelieve the evidence of P.W.6 and the
last seen theory proved by the prosecution coupled with the
extra judicial confession, the recovery of the wearing apparels
and the stones which are the weapon of offence are sufficient in
themselves to uphold the conviction and therefore, the appeal
should be dismissed.
Principles of proving a case based on circumstantial
evidence:
7. Adverting to the contentions raised by the learned
counsel for the respective parties and after going through the
evidence on record, we find that there is no direct evidence in
this case as to who committed the murder of the deceased, when
and how. The case rests upon circumstantial evidence. Keeping
in view the 8five golden principles9 laid down by the Hon9ble
Supreme Court in the case of Sharad Birdhichand Sarda
-Vrs.- State of Maharashtra reported in A.I.R. 1984 SC
1622 which their Lordships termed as "panchsheel99 in the proof
of a case based on circumstantial evidence, we have to see as to
how far the circumstances from which the conclusion of guilt is
to be drawn against the appellants have been fully established
by the prosecution, how far the facts established are consistent
// 13 //
only with the hypothesis of the guilt of the appellant and not
explainable on any other hypothesis. We have also to see
whether the circumstances are of conclusive nature and
tendency and the chain of evidence is so complete so as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the appellants and to come to an irresistible
conclusion that the act must have been done by the appellants
and none else. Since in cases depending largely upon
circumstantial evidence, there is always a danger of conjecture
or suspicion taking the place of legal proof, we have to be
watchful and ensure that conjectures and suspicions do not take
the place of legal proof. It is said that the mind is 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 is 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.
Homicidal death:
8. First of all let us see how far the prosecution has
established that the deceased met with a homicidal death.
// 14 //
P.W.1, who conducted post mortem examination over the dead
body though noticed one lacerated wound on the left side face
and one incised wound on the occipital region and also found
blood was coming out from both the nostrils and both the ears
and he further opined that the injuries were ante mortem in
nature but so far as the cause of death is concerned, she kept
the opinion reserved pending analysis of viscera. The doctor
further stated that the injuries were not sufficient to cause death
in ordinary course. She suggested sending the preserved viscera
for chemical analysis to ascertain the exact cause of death.
However, there is no material that the viscera report was
obtained and placed before P.W.1 to obtain her final opinion
regarding the cause of death of the deceased. Therefore, the
learned trial Court is quite justified in observing that P.W.1 has
not given any opinion regarding the cause of death of the
deceased and the medical evidence is not clear or conclusive.
Last seen theory:
9. In the case of Jabir and Ors. -Vrs.- The State of
Uttarakhand reported in 2023 SCC OnLine SC 32, it is held
that the "last seen" doctrine has limited application, where the
time lag between the time the deceased was seen last with the
accused and the time of murder is narrow; furthermore, the
// 15 //
Court should not convict an accused only on the basis of the "last
seen" circumstance.
The last seen theory is deposed to by P.W.6, who has
stated that the deceased was his younger brother and on
08.11.2003 at about 10.00 p.m. in the night, the deceased came
along with the appellants to his house and asked for Rs.10/-
(rupees ten) to his sister, namely, Palo Kindo and since the sister
did not pay the money, the deceased went away along with the
appellants. Admittedly, the sister of the deceased, namely, Palo
Kindo has not been examined. P.W.6 has stated in the cross-
examination that he was sleeping in the house when the
deceased had come along with the appellants and as he was
married, he was staying in a separate room and his mother
along with other members of the family were residing in another
room. The learned trial Court while analysing the evidence
relating to last seen has been pleased to hold that the deceased
must have called his sister in a loud voice on account of which
she woke up and the deceased asked her for Rs.10/- (rupees
ten) and there was every possibility that P.W.6 had also woke up
hearing the loud voice of the deceased. When the sister of the
deceased has not been examined and there is no evidence that
the deceased asked in a loud voice for Rs.10/- (rupees ten) to
// 16 //
his sister for which P.W.6 who had already slept woke up, the
finding of the learned trial Court in this respect seems to be
based on assumption which is not acceptable. It appears from
the evidence of P.W.6 that he was sleeping in a different room
and there was no electricity connection in the village and most of
the inhabitants belonged to labour class and usually they go to
bed by 8.00 p.m. The deceased seemed to have stayed near his
house in that night for a short time and went away after his
sister refused to pay money to him. In such a scenario, it is
difficult to believe that P.W.6 was in a position to notice that the
deceased was in the company of the appellants on 08.11.2003 at
about 10.00 p.m. In the F.I.R., it is stated by P.W.6 that the
deceased had come with the appellants on 09.11.2003 at about
10.00 p.m. In the F.I.R., it is mentioned by P.W.6 that after the
sister of the deceased refused to pay him money on that night,
the deceased along with the appellants went to the house of
P.W.5 who was staying in the neighbourhood, but P.W.5 has not
supported the prosecution case for which he was declared
hostile. P.W.7 though stated that the deceased left his (P.W.79s)
house on 08.11.2003 at about 5.30 p.m. to go to his own house
with Avon bicycle, but his evidence is silent that at that point of
time, the appellants were with him. It is thus doubtful whether
the deceased had come with the appellants to his house during
// 17 //
the night hours on 08.11.2003 as deposed to by P.W.6 in his
evidence or on 09.11.2003 as stated by P.W.6 in the F.I.R.
The last seen theory comes into play where the time
gap between the point of time when the accused and the
deceased were last seen alive and the deceased was found dead
is so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in such a case.
According to P.W.6, the appellants and the deceased
were there near his house on 08.11.2003 at about 10.00 p.m.
but it cannot be lost sight of the fact that the dead body of the
deceased was found on 10.11.2003 lying on the down track in
between Kansabahala and Kalunga as stated by P.W.9 and U.D.
Case No.37 of 2003 was registered at G.R.P.S., Rourkela. Since
the places where both the appellants and deceased were last
seen and where the dead body was found are completely
different and there was a long time gap between the two, it
// 18 //
cannot be said that the prosecution has successfully established
by positive evidence that the appellants were there with the
deceased till his death took place and in absence of any clinching
evidence, the possibility of injuries being caused to the deceased
by any third person cannot altogether be ruled out.
In view of the foregoing discussions, we are not
inclined to place any reliance on the evidence adduced by the
prosecution relating to the deceased being last seen in the
company of the appellants.
Extrajudicial Confession:
10. So far as the extra judicial confession by the
appellants before P.W.6 is concerned, after being declared
hostile by the prosecution, P.W.6 has stated that he has stated
before the police that the appellants being asked by him,
confessed that they had killed the deceased by pressing his neck
and had laid the dead body on the railway track.
Law is well settled as held in the case of Balwinder
Singh -Vrs.- State of Punjab reported in A.I.R. 1996 SC
607 that an extra judicial confession, by its very nature is rather
a weak type of evidence and requires appreciation with a great
deal of care and caution. Where an extra judicial confession is
// 19 //
surrounded by suspicious circumstances, its credibility becomes
doubtful and it loses its importance.
In the case of Sahadevan and another -Vrs.-
State of Tamil Nadu reported in A.I.R. 2012 SC 2435, the
Hon9ble Supreme Court held that in order to record a conviction
basing upon an extra-judicial confession, the Court must ensure
that the same inspires confidence and is corroborated by other
prosecution evidence.
Law is well settled that extra-judicial confession must
be established to be true and should be made voluntarily and in
a fit state of mind. The words of the witnesses must be clear,
unambiguous and should clearly convey that the accused is the
perpetrator of the crime.
In the case in hand, the prosecution has not adduced
any evidence whatsoever as to why the appellants would repose
confidence on P.W.6 and make confession before him who is
none else than the elder brother of the deceased and what
benefit they are likely to get by making such confession.
Moreover, even though it is stated in the so-called confessional
statement that the appellants killed the deceased by pressing his
neck but P.W.1, the doctor, who conducted post mortem
examination has not found any injury on the neck of the
// 20 //
deceased much less has given any opinion that the cause of
death was on account of strangulation. Therefore, the cause of
death as per the extra-judicial confession is contrary to the
medical evidence. Though in the F.I.R., it is stated that such
confession was made before the co-villagers but no other witness
has come forward to say in that respect except P.W.2 and P.W.2
has also been declared hostile by the prosecution and he has
stated that the appellants did not disclose in his presence how
and why they killed the deceased.
In the case of State of Delhi -Vrs.- Ram Lohia
reported in A.I.R. 1960 SC 490, it is held that statements
recorded under section 164 of the Cr.P.C. are not substantive
evidence in a case and cannot be made use of except to
corroborate or contradict the witness. An admission by a witness
that a statement of his was recorded under section 164 of the
Cr.P.C. and that what he had stated there was true would not
make the entire statement admissible, much less that any part
of it could be used as substantive evidence.
A statement recorded under section 161 Cr.P.C. is
not a substantive piece of evidence. In view of the proviso to
sub-section (1) of section 162 Cr.P.C., the statement can be
used only for limited purpose of contradicting the maker thereof
// 21 //
in the manner laid down in the said proviso. Such a statement
cannot be treated as evidence in criminal trial but may be used
for the limited purpose of impeaching the credibility of a witness.
Therefore, the admission made by P.W.6 with reference to his
previous statement made before the Investigating Officer
regarding the extra-judicial confession made by the appellants
before him would not make such statement admissible, much
less be used as substantive evidence in the case.
Therefore it is very difficult to place any reliance on
the evidence relating to extra judicial confession adduced by
prosecution to establish the guilt of the appellants.
Recovery of wearing apparels of the deceased and stones
at the instance of the appellants:
11. Though the Investigating Officer (P.W.10) during the
course of investigation made the seizure of stones, wearing
apparels of the deceased on the basis of the statements of the
appellants recorded under section 27 of the Evidence Act after
they were taken into custody but it seems that the seizures were
made on 26.11.2003 as per seizure lists Ext.13 and Ext.14.
There is no material on record as to in what condition those
seized materials were kept before those were sent for chemical
analysis on 11.02.2004. No reason has been assigned as to why
// 22 //
there was such an inordinate delay in sending the material
objects to the S.F.S.L., Rasulgarh, Bhubaneswar for chemical
analysis. The C.E. report marked as Ext.18 indicates that both
the blood stains found from the stones and also the sample blood
of appellant no.1 are of human blood group 8A9, but the wearing
apparels of the deceased were found not to be stained with any
blood and even the nail scrapings of the appellants were not
stained with any blood. Also, the wearing apparels of both the
appellants were not stained with any blood. In such a scenario,
the recovery of the wearing apparels of the deceased as well as
the stones cannot be a factor which would be sufficient to
establish the guilt of the appellants.
Motive:
12. The prosecution has failed to prove any motive
behind the commission of crime. In a case based on
circumstantial evidence, motive assumes pertinent significance
as existence of motive is always an enlightening factor in a
process of presumptive reasoning in such a case. No doubt, it is
only the perpetrator of the crime who knows as to what
circumstances prompted him to take a certain course of action
leading to the commission of crime, however, the absence of
motive puts the Court on its guard to scrutinise the
// 23 //
circumstances more carefully to ensure that suspicion and
conjecture do not take the place of legal proof. The absence of
an apparent motive is certainly a relevant factor in this case to
be considered in favour of the appellants, particularly, when the
case is based on circumstantial evidence. Though P.W.6 has
stated in the first information report that in the village, his
mother was called as a witch and the villagers used to threaten
his mother and quarrel with her in case anyone was suffering
from fever but in the evidence, P.W.6 has stated that the entire
colony was inimical to his family since they were suspecting that
his mother was a witch. Therefore, the prosecution has failed to
prove specific motive on the part of the appellants to commit
murder of the deceased.
Other circumstances relied upon by the trial Court:
13. The learned trial Court has relied upon the
circumstances that the dead body of the deceased was found
lying on the railway track in a naked condition near Kansabahala
in between two railway lines and the cycle which the deceased
was carrying was found in a nala. These two circumstances are
not sufficient enough to come to a certain and undeniable
conclusion that the appellants are the authors of the crime.
// 24 //
Conclusion:
14. In view of the foregoing discussions, analysing the
evidence on record meticulously, it is found that the
circumstances brought on record by the prosecution have not
been fully established and there is no cogent and reliable
evidence against the appellants to inculcate them in commission
of the crime. The reasoning assigned by the learned trial Court in
convicting the appellants seems to be based on conjecture and
suspicion, which have got no place in the matter of legal proof of
guilt of the appellants in a criminal trial and therefore, we are of
the humble view that the impugned verdict is nothing but a
sheer moral conviction. Emotions have no role to play in a
criminal trial in adjudicating the guilt or otherwise of the accused
which is to be established by credible evidence. The crime
committed may be cruel or ruthless but the evidence on record
has to be evaluated dispassionately and objectively to see
whether the accused is responsible for the said crime or he is
innocent. We are of the humble view that the prosecution has
miserably failed to establish the charges against the appellants
beyond all reasonable doubt.
In the result, the JCRLA is allowed. The impugned
judgment and order of conviction of the appellants and the
// 25 //
sentence passed thereunder is hereby set aside. The appellants
are acquitted of the charges under sections 302/34 and 201/34
of the I.P.C. The appellants, who are on bail by virtue of the
order of this Court, are discharged from liability of their bail
bonds. The personal bonds and the surety bonds hereby stand
cancelled.
The lower Court records with a copy of this
judgment be sent down to the learned trial Court forthwith for
information.
..........................
S.K. Sahoo, J.
..........................
S.S. Mishra, J.
Orissa High Court, Cuttack
The 8th September 2023/RKMishra
Signature Not Verified
Digitally Signed
Signed by: RABINDRA KUMAR MISHRA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Sep-2023 14:02:56
