Orissa High Court

Jaga @ Jagabandhu Mohalik vs State Of Orissa on 4 January, 2024

Author: S.K. Sahoo

Bench: S.K. Sahoo

                IN THE HIGH COURT OF ORISSA, CUTTACK
                     Jail Criminal Appeal No.58 of 2008

          An appeal from judgment and order dated 30.05.2008
          passed by the Adhoc Additional Sessions Judge (F.T.C.),
          Balasore in Sessions Trial Case No.22/153 of 2007.


         Jaga @ Jagabandhu Mohalik ......                   Appellant


                                      -Versus-


         State of Orissa                   ......          Respondent


                 For Appellant     : Mr. Dillip Ray, Advocate

                 For Respondent : Mr. Rajesh Tripathy
                                  Addl. Standing Counsel
                                     -----------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR JUSTICE S.K. MISHRA _______________________________________________________________

Date of Hearing and Judgment: 04.01.2024 _______________________________________________________________ By the Bench: The appellant Jaga @ Jagabandhu Mohalik faced trial

in the Court of learned Adhoc Additional Sessions Judge (F.T.C.),

Balasore in S.T. Case No.22/153 of 2007 for offence punishable

under section 302 of the Indian Penal Code (hereinafter 'I.P.C.') on

the accusation that in the intervening night of 04/05.05.2005, at

village Pakharsaun, he committed murder of his wife Bibi @

Padmabati Mohalik (hereinafter 'deceased').

The trial Court, vide impugned judgment and order dated

30.05.2008, found the appellant guilty of the offence charged and

sentenced him to undergo rigorous imprisonment for life.

Prosecution Case:

2. The prosecution case, as per the first information report

(hereinafter 'the F.I.R.) (Ext.1) lodged by Purna Chandra Das (P.W.1)

on 05.05.2005 before the Sadar Police Station, Balasore, is that the

marriage between the deceased and the appellant was solemnised 19

years prior to the date of occurrence and they were staying in the

village Saunpada with their children for the last 6 to 7 months after

constructing a house there. On 05.05.2005, at about 6 a.m., upon

getting information about the death of the deceased, the informant

(P.W.1) came to Saunpada and found the deceased lying dead and

there were bleeding injuries on the head of the deceased, which was

caused by a spade, which was lying near the dead body. It has further

been stated that the appellant used to assault the deceased

repeatedly and on the night of 04/05.5.2005, after killing the

deceased, he had absconded.

Ananta Pradhan (P.W.9) scribed the F.I.R. as per the oral

report of P.W.1. After its presentation before the Officer-In-Charge in

Balasore Sadar Police Station, a case was registered as Balasore

Sadar P.S. Case No.105 dated 05.05.2005 under section 302 of the

I.P.C. Suryamani Pradhan (P.W.7), the Officer-In-Charge of Sadar

Police Station, Balasore, himself took up investigation of the case.

During course of investigation, P.W.7 deputed a constable

(P.W.13) to guard the dead body of the deceased, examined the

informant, sent requisition for scientific team, visited the spot on

05.05.2005 and prepared spot map (Ext.6). He held inquest over the

dead body and prepared inquest report vide Ext.2. He seized the

weapon of offence i.e. spade, which was lying at the spot as per

seizure list Ext.4. He sent the dead body for post mortem

examination, seized blood stained earth and sample earth as per

seizure list Ext.3. Though the Investigating Officer searched for the

appellant, but his whereabouts could not be ascertained. After the

post mortem examination, the wearing apparels of the deceased were

produced by the constable before the I.O. (P.W.7), which were seized

as per seizure list Ext.7. P.W.7 sent requisition to the Medical Officer

(P.W.10), who conducted post mortem examination and sought for

her opinion regarding possibility of injuries sustained by the deceased

with the spade and received the opinion from the doctor. He also took

steps for sending the exhibits for chemical examination to S.F.S.L.,

Rasulgarh through Court and received the report of the chemical

examiner vide Ext.10.

On 07.09.2006, P.W.7 handed over the charge of

investigation to P.W.8, Sudarsan Das, who also visited the spot,

examined the witnesses. On 14.10.2006, the appellant was arrested

and forwarded to Court. P.W.5, the son of the appellant and

deceased, was produced before the Court and his statement under

section 164 Cr.P.C. was recorded. On completion of investigation,

charge sheet was submitted on 05.12.2006 against the appellant

under section 302 of the I.P.C.

Framing of Charge:

3. After submission of charge sheet and complying with the

due committal procedure, the case was committed to the Court of

Session, where the trial Court framed charge against the appellant as

aforesaid. As the appellant pleaded not guilty and claimed to be tried,

sessions trial procedure was resorted to establish the guilt of the

appellant.

Prosecution Witnesses and Exhibits:

4. In order to prove its case, the prosecution examined as

many as fourteen witnesses.

P.W.1 Purna Chandra Das is the brother of the deceased

and the informant in the case. He stated that the deceased was

previously assaulted by the appellant when she objected to the selling

of a landed-property by the appellant. He further stated that the

appellant threatened the deceased one day prior to her death. He was

informed by P.W.5 that the appellant had murdered the deceased and

fled away from the spot. Subsequently, he went to the house of the

deceased and saw bleeding injury on the parietal region of the

deceased.

P.W.2 Dinabandhu Das is the uncle of the deceased who

stated to have heard about assault on the deceased by the appellant

basing upon sale of a piece of land. He further stated that in the

morning hours of the date of occurrence, P.W.5 came to P.W.1 to

inform him that the appellant had committed murder of the deceased.

He proceeded to the spot and saw bleeding injury on the body of the

deceased. He is also a witness to the preparation of inquest report

vide Ext.2.

P.W.3 Ram Chandra Nayak stated that during the

morning hours of 05.05.2005, P.W.5 came and disclosed that the

appellant dealt blows by the blunt side of a spade as a result of which

the deceased died. He further stated to have seen the dead body of

the deceased lying in front of her hut with bleeding injury on the left

side parietal region, near the ear root. He also saw a cloth which was

tied around her neck and blood was coming out of her ear and

nostril. He is a witness to the preparation of the inquest report vide

Ext.2 and seizure of blood-stained earth and sample earth as per

seizure list Ext.3 and seizure of the spade as per seizure list Ext.4.

P.W.4 Lambodar Das stated that though the deceased was

living with the husband in her matrimonial villager but after a

dispute between the couple, she had come to reside in her paternal

village and stayed there by constructing a hut. He also stated that 15

days prior to the occurrence, the appellant also came to reside with

the deceased. He further stated that he has seen the deceased a day

prior to the date of occurrence and on the next morning, P.W.5

informed him that the appellant had killed the deceased.

P.W.5 Rabindra Mohallik @ Putia, who is the son of both

the deceased and the appellant, stated that there was a quarrel

between the appellant and the deceased for which the deceased had

come to live in Pakharsaun. He along with his three younger sisters

also came with her and resided together. He further stated that he

came to know about the death of the deceased in the morning when

he saw bleeding injury on the ear root of the deceased and she did

not respond to his call. However, he stated that he does not know as

to how the deceased died as he had slept in the night. Subsequently,

he was declared hostile by the prosecution.

P.W.6 Purna Chandra Mohallik stated that subsequent to

a quarrel between the appellant and the deceased, the latter came to

reside in her paternal village along with four of her children. He

further stated that the appellant came to stay with the deceased 15

days prior to the occurrence. He also stated to have seen the

deceased and the appellant when they came to his house after having

a quarrel on the previous day of occurrence. He is also a witness to

the preparation of inquest report vide Ext.2.

P.W.7 Suryamani Pradhan was working as the Officer-in-

Charge of Sadar Police Station, Balasore, who registered the case

upon receipt of F.I.R. from P.W.1. He is also the initial Investigating

Officer of the case.

P.W.8 Sudarsan Das joined as the Officer-In-Charge of

Sadar Police Station, Balasore, on 10.09.2006 and took over the

charge of investigation of the case from P.W.7. Upon completion of

investigation, he submitted the charge sheet against the appellant.

P.W.9 Ananta Pradhan scribed the F.I.R. as per the

instruction of the informant (P.W.1).

P.W.10 Dr. Jayanti Parida was working as the Assistant

Surgeon at the District Headquarters Hospital, Balasore, who

conducted the post-mortem examination on the dead body of the

deceased on police requisition. She proved her report vide Ext.11. A

spade was produced before her, upon examining which she opined

that the injuries found on the dead body of the deceased can be

caused by such spade.

P.W.11 Sanjukta Mohapatra was posted as a constable at

Sadar Police Station, Balasore. She is a witness to the seizure of one

green colour saree stained with blood, one white colour saya and one

red colour blouse stained with blood as per seizure list Ext.7.

P.W.12 Bidyadhar Mohallik is the brother-in-law (husband

of the sister of the deceased) of the deceased who stated that on

05.05.2005, he received a telephone call about the death of the

deceased. After hearing the news, he came to the spot and saw the

deceased lying there sustaining bleeding injury on her left side ear.

He also stated that a saree was tied around her neck. He is also a

witness to the preparation of inquest report vide Ext.2.

P.W.13 Mangal Singh was working as a constable at the

Sadar Police Station, Balasore, who was issued a command certificate

to guard the dead body of the deceased which was lying on the field of

Pakharsaun School. He also took the dead body of the deceased for

post-mortem examination. Further, he brought the wearing apparels

of the deceased and other articles from the spot and produced the

same before the I.O.

P.W.14 Kailash Chandra Majhi was posted as the Sub-

Inspector of Police at the Sadar Police Station, Balasore. He is a

witness to the seizure of the wearing apparels of the deceased as per

seizure list Ext.7.

The prosecution also proved fourteen documents. Ext.1 is

the F.I.R., Ext.2 is the inquest report, Exts.3, 4 and 7 are the seizure

lists, Ext.5 is the statement of P.W.5 recorded under section 164

Cr.P.C., Ext.6 is the spot map, Ext. 8 is the injury requisition, Ext.9

is the forwarding letter, Ext.10 is the report of chemical examiner,

Ext.11 is the post mortem examination report, Ext.12 is the

command certificate, Ext.13 is the dead body challan and Ext.14 is

the examination report of biology and serology.

Defence Plea:

5. The defence plea is one of denial. However, neither any

witness was examined nor any document was exhibited on behalf of

the defence to negate the prosecution case.

Findings of the Trial Court:

6. The trial Court, after assessing oral as well as

documentary evidence, came to hold that all the witnesses have

stated that they came to know about the incident from P.W.5 and

proceeded to the spot forthwith and found the appellant absent in his

house. The trial Court further held that from the inquest report

[ 10 ]

(Ext.2) and from the post mortem report (Ext.11), it is crystal clear

that the death of the deceased was homicidal one due to injury on the

vital part of brain and the injuries were ante mortem in nature. The

trial Court further held that if the documentary evidence coupled with

ocular evidence is considered together, it would unerringly point out

guilty finger towards the appellant. It was further held that the

conduct of the appellant subsequent to the occurrence appears to be

suspicious and to escape from the liability, he had left the house and

that the appellant has not explained the reason as to why he

absconded from the house or why he left the house immediately after

the occurrence. The trial Court summed up that the conduct of the

accused subsequent to the occurrence and the oral evidence taken

together pointed out that it was nobody else but the appellant, who

had committed the offence and accordingly, found that the

prosecution has proved a case under section 302 of the I.P.C. against

the appellant beyond all reasonable doubt.

Contention of the Parties:

7. Mr. Dillip Ray, learned counsel appearing for the appellant

contended that there is no direct evidence in the case and the case

solely rests upon circumstantial evidence. The circumstances proved

by the prosecution are not clinching and do not form a complete

chain so as to unerringly point towards the guilt of the appellant. The

[ 11 ]

last seen theory is not established by way of clinching evidence and

relevant questions have not been put in the accused statement so far

as the last seen is concerned. Therefore, the same could not have

been used against the appellant. The learned counsel further argued

that since in a case of circumstantial evidence, motive assumes

significance and the prosecution has not proved any motive on the

part of the appellant to commit the crime, the appellant is entitled to

get the benefit of doubt, more particularly when the star witness on

behalf of the prosecution is none else then P.W.5, son of the

deceased. The appellant has made a specific statement that in the

night of occurrence, he was not present in the house and that the

dead body of the deceased was lying on the outer verandah of the

house. Learned counsel further argued that the act of absconding

itself cannot be a ground to convict an accused for offence punishable

under section 302 of the I.P.C. and therefore, the impugned judgment

and order of conviction is liable to be set aside.

Mr. Rajesh Tripathy, learned Addl. Standing Counsel, on

the other hand, supported the impugned judgment and argued that

even though P.W.5 has not supported the prosecution case and was

declared hostile by the prosecution, but it would appear that in his

statement recorded under section 161 of the Cr.P.C., he has stated

about the assault on the deceased by the appellant and more

particularly, the presence of the appellant on the date of occurrence.

[ 12 ]

Learned counsel further argued that the evidence has come on record

that since the appellant wanted to dispose of the landed property and

it was opposed to by the deceased, there was dissention between the

two. She was assaulted for which, she left the house of the accused

and came back to stay at her paternal village by constructing a house

on a Government land and the same was said to be the motive behind

the commission of offence. Learned counsel further argued that a

number of witnesses have stated about the presence of the appellant

at the spot and that he was staying in the company of the deceased

prior to the occurrence. Since the appellant was found absconding

after the occurrence, it can be said that the chain of circumstances is

complete and the trial Court has not committed any illegality in

convicting the appellant under section 302 of the I.P.C.

Adverting to the contention raised by the learned counsel

for the parties, it is not disputed that there is no direct evidence in

the case and the case is based on circumstantial evidence. The

principle for appreciation of a case based on circumstantial evidence

is well settled from the judgment of the Hon'ble Supreme Court in the

case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra

reported in (1984) 4 Supreme Court Cases 116. Keeping in view

the 'panchasheel principle' laid down by the Hon'ble Court therein, we

have to assess the evidence on record to see whether the prosecution

has established that the circumstances taken together form a

[ 13 ]

complete chain which points towards the guilt of the accused and it

can be safely concluded that it is the appellant alone, who committed

the crime.

Whether the deceased met with a homicidal death?:

8. Before going to assess the ocular evidence, we think it

apposite to see how far the prosecution has established that the

deceased met with a homicidal death. The investigating officer

(P.W.7), after visiting the spot on 05.05.2005, conducted inquest over

the dead body and prepared inquest report vide Ext.2. He also sent

the dead body for post mortem examination and the doctor (P.W.10)

conducted post mortem examination at District Headquarters

Hospital, Balasore on 05.05.2005 and she noticed the following

injuries on the body of the deceased:

(i) There was presence of rigor mortis in four limbs. Face was swollen with lacerated injury of 4" x 1" x 1" over left side face extending from face of left ear lobe extends upward left lateral angle of left side eye surrounding the above mentioned wound, there was a haematoma of size 3" x 3"

bleeding from both nostrils and ear. On dissection, brain was congested and there was a haematoma of 3" x 3" over left temporal lobe of brain. Both lungs, both kidneies, liver and splin were intact but

[ 14 ]

pale. Stomach was intact and pale containing 200 gm. Of partial digested food particular having no characteristic of smell. Uterus was intact having no symptom of conception.

(ii) All the above features were ante mortem in nature except rigor mortis. Time since death within 36 hours at the time of my examination at 4 P.M. Cause of death was due to haemorrhagic shock due to injury on the vital organ like brain.

(iii) During my post mortem examination spade was shown to me and I opined that the injury was possible by the said supplied spade. This is my report Ext. 11 and Ext.11/1 is my signature on it.

P.W.10 has specifically opined that all the injuries are

ante mortem in nature except rigor mortis. Time since death was

opined to be within 36 hours of the examination and the cause of

death was said to be on account of haemorrhagic shock due to injury

to the vital organ like brain. She has further stated that the spade

was produced before her and after verifying the same, she gave her

opinion that the injury sustained by the deceased was possible by the

said spade and the post mortem report has been marked as Ext.11.

Nothing has been brought out in the cross-examination so as to

discard the evidence of the doctor. The appellant has also not

[ 15 ]

challenged the finding of the trial Court on the ground that it was a

case of homicidal death.

Considering the inquest report, the evidence of the doctor

(P.W.10) and the post mortem report (Ext.11), we are of the humble

view that the trial Court has rightly come to the conclusion that the

deceased met with a homicidal death.

Circumstances relied upon by the Prosecution:

9. The prosecution primarily seeks to establish the following

circumstances so as to tighten the grip of guilt against the appellant.

(i) there were previous quarrel in between the

appellant and the deceased as the deceased was

raising objection to the appellant for making attempt

to sell the landed property and thus, the dissention

between them is the motive behind commission of

the crime;

             (ii)      the deceased was last seen alive in the

             company of the appellant;

             (iii)    the conduct of the appellant in absconding

immediately after the occurrence took place is a

relevant factor.

[ 16 ]

Dispute between the appellant and the deceased as motive

behind the murder:

10. So far as the circumstance no.(i) i.e. the dispute between

the appellant and the deceased is concerned, which is said to be the

motive behind the crime as per the prosecution case. P.W.1, the

brother of the deceased, has stated that in the year 2005, the

deceased raised objection when the appellant tried to sale a landed

property and the appellant assaulted the deceased for which the

deceased came to their village and there was a meeting in that regard

and the deceased stayed in a separate house near the village school.

However, in the cross-examination, P.W.1 has stated that the

appellant had joint property of one and half acres of land and that he

had not seen the document and he could not say the location of the

land. He has further stated that the property stood in the name of the

father and the paternal uncles of the appellant. He has further stated

that as per his knowledge, there was no landed property in the name

of the appellant and there was also no property in the name of the

deceased. Though he stated that the appellant sold some of his lands,

but he could not say as to whom the land was sold and to what

extent. The evidence of this witness in the cross-examination makes

his statement in the chief-examination doubtful that the appellant

tried to sale the landed property. If the property stood recorded in the

name of the father and paternal uncles of the appellant and there is

[ 17 ]

no documentary evidence that they gave any authority to sale such

land, it is not believable that the appellant would try to sale the land

and that the deceased would raise objection, for which there would be

dissention between them. The other witnesses have stated about such

dispute in a vague manner. Therefore, we are of the view that there is

no clinching evidence on record that the appellant wanted to sale the

landed property and that the deceased was raising objection, for

which there was dissention between the two.

In a case of circumstantial evidence, motive assumes

significance. Absence of motive puts the Court in guard to scrutinize

other evidence on record. In the case of Nandu Singh -Vrs.- State of

Madhya Pradesh (Now Chhattisgarh) reported in (2022) Supreme

Court Cases OnLine SC 1454, a three-Judge Bench of the Hon'ble

Supreme Court has reiterated the aforesaid stance of law in the

following words:

"12. In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused."

[ 18 ]

In this case, when the prosecution has come forward with

a particular motive behind the commission of the crime and we find

that the prosecution has been unsuccessful in proving the same, it is

incumbent upon us to assess other evidence on record to see how far

those are established and whether the chain of circumstances is

complete or not.

Whether the deceased was last seen alive with the appellant?:

11. The next circumstance is the appellant being last seen in

the company of the deceased. The star witness on behalf of the

prosecution is no one else than P.W.5, who is the son of the appellant

as well as the deceased. He was aged about 12 years when he

deposed in the trial Court. Some formal questions were put by the

trial Court to assess his competence to depose in a criminal trial and

he answered to the same and after verifying the answers, the trial

Court came to a finding that the witness was able to give reasonable

answers and therefore, he was declared to be a competent and his

evidence was recorded. P.W.5 stated that the deceased died in village

Pakharsaun and there was a quarrel between his father (appellant)

and his mother (deceased), as a result of which the deceased came to

village Pakharsaun. He further stated that he himself along with his

three younger sisters came with the deceased and stayed together

and the deceased died in the night. In the next day morning, he came

[ 19 ]

to know about the death as she was having bleeding injury on the ear

root and she did not respond to his call. He has further stated that he

went to call his maternal uncle (P.W.1). He could not say anything

about the death of the deceased as he slept in the night. In the cross-

examination he has stated that when they came to village

Pakharsaun, they first stayed in the house of P.W.1. As there was

some discontentment, the deceased left the house of P.W.1 and lived

separately and it was an one room house. He has further stated that

on the night of occurrence, the deceased slept outside the house, as it

was a night of summer season. P.W.5 specifically stated that the

appellant had never come to the house where they were staying and

that the appellant had not come to the hut of his mother on

04.05.2005. Therefore, this evidence of the star witness, on behalf of

prosecution, is completely silent about the presence of the appellant

in the hut. Though this witness has been declared hostile and his

previous statement recorded under section 164 Cr.P.C. has been

confronted to him, but law is well settled that the statement of a

witness recorded under Section 164 Cr.P.C. is not a substantive piece

of evidence and it may be used for contradiction or corroboration of

the witness, who made it. Such a statement can be used to cross-

examine the maker thereof.

In view of the settled position of law and the fact that even

in the statement recorded under section 164 of the Cr.P.C., P.W.5 has

[ 20 ]

not whispered anything about the presence of the appellant in the

night in question when the deceased was in the hut, we are of the

view that from the evidence of P.W.5, it is not established that the

appellant was last seen in the company of the deceased. The other

witnesses, who have stated about the appellant staying with the

deceased, have stated it vaguely. P.W.3 though has stated that he had

seen the appellant standing in front of the house of the deceased on

each evening and he had seen him from a distance of 20 to 25 links

at about 9 p.m. on the night of occurrence, but most peculiarly, no

question was put to the appellant regarding his presence in the

company of the deceased on the night of occurrence. During his

cross-examination, the question nos.4, 15 and 21 were put to the

appellant suggesting him that he had stayed with the deceased for

last 15 days. But no specific question has been put to him that on the

night of occurrence, he was in the company of the deceased.

The examination of the accused is for the purpose of

enabling him to explain any circumstance appearing in the evidence

against him. Each separate piece of evidence in support of

circumstance is to be put to the accused and the accused may or may

not avail the opportunity for offering his explanation. In a criminal

trial, the purpose of examining the accused under section 313 Cr.P.C.

is to meet requirements of the principle of natural justice. The

circumstances, which are not put to the accused in his examination

[ 21 ]

under section 313 of the Cr.P.C., cannot be used against him and

must be excluded from consideration. The Hon'ble Highest Court in

the case of Paramjeet Singh -Vrs.- State of Uttarakhand reported

in (2010) 10 Supreme Court Cases 439, emphasized on the

mandatory nature of duty cast on the trial Court to put all

inculpatory circumstances to the accused under section 313 of the

Cr.P.C. It has also succinctly explained the result that may ensue in

case the strict procedure is not adhered to. The following observation

of the Hon'ble Apex Court can be reproduced for better appreciation

of the stand of law on this point.

"22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be

[ 22 ]

excluded from consideration. (Vide Sharad Birdhichand [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] and State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705].)"

Some of the co-villagers have stated in their evidences

that since 15 days prior to the date of occurrence, the appellant was

staying in the company of the deceased. But when the specific

evidence relating to the presence of appellant in the company of the

deceased in the night in question is absent and since the evidence

adduced by P.W.3 in that respect has not been put to the appellant

and more particularly, in view of the evidence of P.W.5 that the

appellant had not come to the hut in question on the date of

occurrence and that he was never staying there with them, we are of

the view that the prosecution has not succeeded in establishing the

last seen theory against the appellant.

Merely the fact of abscondence is not sufficient to convict the

appellant:

12. So far as the abscondence of the accused is concerned, it

would have been relevant had there been any clinching evidence

regarding the presence of the appellant in the hut house in the

company of the deceased in the fateful night. Since we have already

held that there is no such clinching evidence that the appellant was

[ 23 ]

in the company of the deceased on the night of occurrence, merely

because the appellant was arrested at another place on some other

day, it cannot be said that he was absconding. Also, for the sake of

argument, even if it is believed that the appellant was absconding, the

law is well settled that even absconding itself is not sufficient to draw

an inference against the accused that he is the author of the crime,

inasmuch as a person may abscond when he comes to know that the

police is suspecting his involvement in a crime. Recently, in the case

of Sekaran -Vrs.- State of Tamil Nadu reported in (2023) Supreme

Court Cases OnLine SC 1653, the Hon'ble Supreme Court has held

that merely because the accused absconded, it cannot be inferred

that he is essentially the author of the crime and it is not unnatural

for a man to abscond if he apprehends his arrest in connection with a

criminal case. The Hon'ble Court observed as follows:

"23. Although not brought to our notice in course of arguments, it is revealed from the oral testimony of PW-11 that the appellant could be apprehended 3 (three) years after the incident from Puliyur road junction in (1 km. away from Ambalakalai) in Kerala after vigorous search. However, abscondence by a person against whom an FIR has been lodged and who is under expectation of being apprehended is not very unnatural. Mere absconding by the appellant after alleged commission of crime and remaining

[ 24 ]

untraceable for such a long time itself cannot establish his guilt or his guilty conscience. Abscondence, in certain cases, could constitute a relevant piece of evidence, but its evidentiary value depends upon the surrounding circumstances. This sole circumstance, therefore, does not enure to the benefit of the prosecution."

(Emphasis supplied)

As far as evidentiary value of the conduct of the accused

in absconding is concerned, the following observations made by the

Hon'ble Supreme Court in the case of Matru -Vrs.- State of U.P.

reported in (1971) 2 Supreme Court Cases 75 throw much light as

to how much reliance can be placed upon such piece of evidence to

record a finding of conviction.

"19....Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence

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for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."

Thus, from the aforesaid settled precedents, it is clear

that mere fact of abscondence cannot, ipso facto, result in an

irresistible inference that the person absconding necessarily had

the guilty intention to commit the crime alleged. Further, when the

accusation is for a grave crime, like the one under section 302 of

the IPC, i.e. murder, the solitary conduct of the accused in

absconding cannot be given much weightage so as to ignore the

fact that there is no other clinching evidence available to implicate

him in the ghastly crime. However, when other circumstances

clearly show the accused as the culprit, then abscondence on his

part might add a negative inference against him and lead to the

completion of chain of circumstances. But in the case in hand,

when all the alleged incriminating circumstances could not be

proved against the appellant beyond reasonable doubt, it would be

perilous for the interest of justice to hold him guilty as possibility of

his innocence cannot be ruled out.

Conclusion:

13. In view of the foregoing discussion, we are of the view that

the circumstances have not been established with clinching evidence

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and the circumstances taken together do not form a complete chain.

The motive behind the commission of the crime is absent. There is no

clinching evidence regarding the last seen of the appellant in the

company of the deceased. In that view of the matter, the impugned

judgment and order of conviction of the appellant under Section 302

of the I.P.C. is not sustainable in the eye of law. Accordingly, the

same is hereby set aside.

It appears from the case records that the appellant is on

bail. The bail bond, if any, executed by the appellant hereby stands

cancelled.

Before parting with the judgment, we put on record our

appreciation to Mr. Dillip Ray, learned counsel for rendering his

assistance in arriving at the above decision. We also appreciate Mr.