In a Criminal Jail Appeal, while acquitting the accused of a double murder, the Division Bench of the Orissa High Court noted that last seen theory in itself is not sufficient to bring home the guilt of the accused, the onus of proving the guilt still has to be satisfied by the prosecution and it should be corroborated with strong factors like motive.
Brief Facts:
The Current Jail Criminal Appeal has been filled by one of the convicts who has been accused and sentenced to imprisonment for life.
There has been a murder of two people, and the current petitioner Dusashan Bag has been alleged to have assisted the accused Senapati Mahakud in killing the two deceased. There was no direct evidence against the accused person and the prosecution case was based on circumstantial evidence. The evidence of P. Ws was analyzed by the trial court and that is what established the motive of the accused Senapati Mahakud. For the other accused Dusashan Bag, the sessions court relied on some of P. W’s statements regarding the previous rivalry between him and the deceased. They also relied on the evidence of P.W.7 to find material establishing that the accused-Dusashan was available in the same village on the date of occurrence. Some P. Ws have also claimed that they have seen the accused Dusashan Bag visiting the house of the deceased during this period.
It is on the basis of the above circumstantial evidence that the trial ended with the conviction of both the accused persons and the same has been challenged by way of the current appeal.
Contentions of the Appellant:
The learned counsel for the appellant submitted that the judgment and the order of sentence are suffering from infirmity, for the same several infirmities were pointed out, like - there was no examination of the star witness, in the test identification parade P.W.6 identified somebody else and not the accused in question. Further, it is also contended that there is no completion of the chain of the incriminating sequence of events to lead to the conviction of this accused.
While going through and pointing to the discussion on evidence by the Sessions Court, the Counsel for the appellant submitted that there has been a wrong appreciation of evidence by the court below and they have failed in appreciating the lacunas in the evidence of the prosecution involved.
Contentions of the Respondent:
The Learned Counsel for the Respondent took the court through the case of the prosecution, the claim of the prosecution with evidence of the P.Ws, and by reading through the pieces of evidence, he has tried to justify the order of the trial court. It was also contended that there is no sustainable ground to interfere in the order passed by the learned Session Judge and the conviction, as well as the sentence, is justified and thus the appeal must be dismissed.
Observations of the Court:
The court went through different pieces of evidence that have been relied on by the prosecution and concluded that the prosecution story is based on suspicion and is an attempt to somehow complete the chain of incidents that lead to the death of the two deceased. On further scrutiny, the court noted that all the vital witnesses were in relation to the deceased and they were also circumstantial witnesses as well as post-occurrence witnesses. The court then noted that there is no eyewitness.
After going through the FIR story and the statement of all the witnesses, the court concluded that there is no completion of the chain establishing its case beyond all reasonable doubts implicating the accused persons and there is no evidence presented by the prosecution to complete the chain in establishing the fatal incidents of death to have been caused by the accused-appellant. It was also held by the court that, there cannot be conviction based only on extra-judicial confession by one of the accused and further an accused leading to give recovery of an ornament worn by one of the deceased.
The court then noted that the last-seen theory in itself is not sufficient to bring home the guilt of the accused, the onus of the guilt has to be satisfied by the prosecution that too with strong factors. It was also mentioned that the Sessions Judge miserably failed in appreciating vital aspects of the matter.
The court then referred to the decision of the Supreme Court in the case of Jaswant Gir v. State of Punjab, where it was held that the appellant cannot be solely convicted on the basis of the last seen evidence, the same has to be supported by other proved facts in such a way that it conclusively proves the guilt of the person. Then the judgment in Digamber Vaishnav and Anr. Vrs. State of Chhattisgarh was also referred to, where it was held that last seen together cannot be the sole criteria to convict the accused. The court then concluded that both these judgments have a clear application to the current case and the prosecution has failed to establish its allegation on motive and there is a failure of establishing the charges against the appellant.
The Decision of the Court:
The appeal was allowed and the appellant Dusashan Bag was acquitted while setting aside the judgment of conviction as well as the order of sentence.
Case Title: Dusashan Bag v. State of Orissa
Coram: Justice Biswanath Rath; Justice M.S. Sahoo
Case No.: JCRLA No.11 of 2005
Advocates for the Appellant: Mr. G.S. Pani
Advocate for the Respondent: Mr. S.S. Pradhan, Addl. Govt. Adv.
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