Orissa High Court
Debi Charan Sunani vs State Of Orissa on 12 April, 2012
Author: B.K. Patel
Bench: L. Mohapatra, B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
JCRLA NO.65 OF 2003
From the judgment and order dated 31.1.2003 passed by Shri
B.C.Tripathy, Additional Sessions Judge,Nuapada in Sessions Case
No.36/6 of 2002.
Debi Charan Sunani ....... Appellant
- Versus-
State of Orissa ....... Respondent
For Appellant : M/s Sanjeeb Chakrabarty
Miss Tapaswini Sinha
For Respondent : Mr.Sangram Das
Additional Standing Counsel.
PRESENT:
THE HONOURABLE SHRI JUSTICE L. MOHAPATRA
AND
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing-29.3.2012 :: Judgment - 12.4.2012
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B.K. PATEL, J.This appeal is directed against judgment and order dated 31.1.2003 passed by the learned Additional Sessions Judge,Nuapada in Sessions Case No.36/6 of 2002 convicting and sentencing the appellant to undergo imprisonment for life under section 302 of the I.P.C. for commission of murder of deceased Jamuna Kharsel.
2. P.W.6 is deceased's father. Informant P.W.1 is P.W.6's brother. It is alleged that occurrence took place in the night of 9/10.7.2001. Prosecution case is that deceased, appellant and informant P.W.1's son were working at Raipur. Prior to the occurrence P.W.1 went to Raipur and stayed with his son for some days. On 8.7.2001 in the evening P.W.1 along with the deceased and the appellant boarded train in Raipur in order to come to his village. They reached Khariar bus stand on 9.7.2001 at about 8.00 A.M. Appellant asked P.W.1 to guard personal belongings of the deceased and left along with the deceased for Khariar town to purchase a torch light. Appellant and deceased having not returned till 10.00 A.M., P.W.1 returned to his house in a bus along with the personal belongings of the deceased and gave the same in his house. On 10.7.2001 at about 6.00 A.M. one of the co-villagers of P.W.1 came to 3 his house and informed that dead body of the deceased was lying on the main road under a kendu tree near village Mandiarucha. P.W.1, P.W.2, P.W.3 and others went to the spot and saw the dead body of the deceased lying on the main road in a pool of blood. Suspecting the appellant to be the author of the crime, P.W.1 lodged First Information Report Ext.15 at Sinapali Police Station upon which Officer-In-Charge P.W.18 registered the case and took up investigation. In course of investigation, apart from taking other steps, P.W.18 seized weapon of offence, knife M.O.IV, from the house of appellant at his instance in presence of witnesses including P.Ws. 2,3,9 and 10. Upon examination under chemical examination report Ext.19 knife M.O. IV as well as wearing apparels of the deceased were found to be stained human blood of AB group. On completion of investigation, charge-sheet was submitted and the appellant faced trial for commission of offences under sections 302 and 379 of the I.P.C.
3. Appellant took the plea of denial.
4. In order to substantiate the charge, prosecution examined eighteen witnesses. Informant P.W.1 and P.W.14 were examined to depose regarding the circumstance that the deceased was last seen in the company of the appellant. P.Ws. 2,3,9 and 10 were examined to 4 depose regarding circumstance of recovery and seizure of knife M.O.IV at the instance of the appellant. Of them, P.W.2 and P.W.10 were declared to be hostile witnesses. P.Ws. 4,11 and 12 were working at Raipur. P.W.4 deposed to have paid Rs.200/- to the deceased to give in his house whereas P.Ws. 11 and 12 deposed to have paid Rs.250/- and Rs.150/- respectively to the appellant to give the same to their family members. P.W.5 was an inquest witness. P.W.6, deceased's father, and P.W.7 were post-occurrence witnesses. P.W.8 was a witness to seizure under seizure lists Exts.8,9 and 10. P.W.13 is a doctor who conducted post mortem examination over the dead body of the deceased. He also medically examined the appellant and found superficial cut injuries on right palm and index finger. P.Ws.15 and 16 were police constables who assisted in investigation. P.Ws. 17 and 18 were Investigating Officers. Prosecution also relied upon documents marked Exts. 1 to 19 and material objects M.Os.I to M.O.XII. No defence evidence was adduced.
Trial court held the prosecution to have proved the charge under section 302 of the I.P.C. against the appellant on the basis of circumstantial evidence. However, appellant was acquitted of the charge under section 379 of the I.P.C.
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5. In assailing the impugned judgment it was submitted by the learned counsel for the appellant that in order to constitute a firm basis for conviction on circumstantial evidence, each of the links in the chain of circumstances must be established beyond reasonable doubt and such links must constitute a complete chain so as to unerringly point out that it was the accused who committed the offence. It was pointed out that in the present case prosecution relied upon two circumstances only, which are:
(1) deceased was last seen in the company of
the appellant by P.W.1, and
(2) blood stained knife M.O.IV was recovered and
seized at the instance of the appellant.
It was contended that neither of the two circumstances relied upon by the prosecution has been established beyond reasonable doubt. So far as circumstance that the appellant was last seen with the deceased is concerned, sole testimony of P.W.1 to have seen them for the last time at 8.00 A.M. on 9.7.2001 cannot be treated as incriminating against the appellant in view of the fact that dead body of the deceased was found on the following morning only. It was further argued that evidence of P.Ws. 2,3,9 and 10 with regard to circumstance of recovery of knife M.O.IV is inconsistent and not acceptable. That apart, circumstance of detection of blood stain on 6 M.O. IV having not been put to the appellant in his examination under Section 313 of the Cr.P.C., recovery and seizure of the knife cannot be utilized as an incriminating circumstance against the appellant.
6. Placing reliance on the evidence of P.Ws. 1,3 and 9 and the medical evidence, learned counsel for the State submitted that the prosecution has proved to the hilt the charge under section 302 I.P.C. against the appellant.
7. It is not at all disputed that death of the deceased was homicidal in nature. P.W.13 found as many as five ante-mortem incised wounds on the dead body of the deceased in course of post- mortem examination. He opined that cause of death of the deceased was syncope as a result of injuries to vital organs and haemorrhage. In response to query made by the Investigating Officer P.W.13 opined that injury on the deceased could be caused by seized knife M.O.IV.
8. Homicidal nature of death of the deceased by itself is not a circumstance which would implicate the appellant with the offence. Prosecution relied upon the following two circumstances in order to establish complicity of the appellant in commission of the offence:-
(1) deceased was last seen in the company of
the appellant, and
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(2) blood stained knife M.O.IV was recovered and seized consequent upon information received from the appellant while in custody.
P.Ws. 1 and 14 were examined in support of the first circumstance whereas P.Ws. 2,3,9 and 10 were examined in support of the second circumstance. Evidence of other witnesses does not in any manner incriminate the appellant.
9. P.W.14 testified that on 9.7.2000 at about 7 P.M. two persons purchased a coconut and two packets of Parle-G biscuits from his grocery shop. However, he did not identify the appellant to be either of those two persons. Therefore, evidence of P.W.14 is of no help to the prosecution. Informant P.W.1 stated in his evidence that on the date of occurrence he alongwith appellant and deceased came from Raipur by a train and got down at Kantabanji railway station, and therefrom they came to Khariar. At Khariar appellant Debi Charan asked him to watch over his belongings and the appellant and deceased went towards the market at about 8.00 A.M. to purchase a torch light for the deceased. Till 10 A.M. they did not return back for which P.W.1 came towards his village by a service bus. He handed over the belongings and clothing of deceased to deceased's mother saying that she should keep the belongings as the 8 deceased had gone with the appellant towards the market. Till late night the deceased did not come to their house and on the next day at about 7.00 A.M. one Banki Majhi of their village informed them that deceased was lying dead on the Mandiarucha road under a kendu tree. They noticed that there was bleeding from the body of the deceased. The deceased had been killed much prior to their seeing the dead body. They had strong doubt that the appellant must have killed the deceased because at the time when they left to purchase a torch from the market, the appellant had assured P.W.1 to see that the deceased reached their house safe. P.W.1 stated to have lodged First Information Report at the police station. Though prosecution sought to establish theft of money of the deceased by the appellant as the motive for commission of the offence, P.W.1 stated in his cross- examination that he did not know whether the deceased had any cash with him or not. Thus, P.W.1 is the only witness in support of the circumstance that the deceased was in the company of the appellant till 8.00 A.M. on the day proceeding the day on which the deceased's dead body was found. In view of long gap between the time when P.W.1 asserted to have seen the deceased for the last time in the company of the appellant and the time of detection of the dead body, the circumstance that the deceased was with the appellant 9 when he was last seen by P.W.1 requires corroboration by other material in order to be the basis for any firm finding.
10. P.W.2 stated that in presence of him and others the appellant confessed his guilt and disclosed that he had concealed the knife by which he had killed under the roof of his house. However, he categorically stated that he had not gone to the place of discovery with the appellant and the police, but subsequently he saw the knife in the police station. In such circumstances, P.W.2 was declared hostile. P.W.10 stated that police stated before them that the seized knife was given by the appellant to the police and they saw the knife in the hand of the investigating officer. She also stated that she had not heard anything further spoken by the appellant at the place where the knife was shown by police. The appellant did not disclose anything else in their presence. In cross-examination also this witness stated that she had only seen a knife which was shown by the police. The investigating officer asked her to put signatures on different papers and without knowing the contents of the same she put her signatures. Therefore, evidence of hostile witness P.W.10 is also of no assistance to the prosecution. P.W.9 stated in his evidence that while in custody the appellant admitted to have killed a man by means of a knife and wanted to identify the place where he had 10 concealed the weapon of offence and pointed the place of his roof made of tiles. Then the investigating officer requested P.W.9 to get the knife from the roof of the accused and in obedience to their request, he brought the said knife and handed over the police. P.W.9 also testified that the appellant admitted to have brought out cash amounting to Rs.1,300/- from the pant pocket of the deceased and purchased clothing and chappals etc. In his cross-examination P.W.9 further stated that the appellant did not disclose the name of the deceased. The appellant also did not disclose regarding the place where the deceased was killed or regarding the circumstance under which he had killed a man. P.W.9 also stated in his cross- examination that the appellant did not disclose that he had purchased clothing and chappals etc. with the money he had stolen from the pocket of the deceased, but these things were stated to him by the police from whom they came to know about it. Police only stated before them that this was the version of the appellant. In view of such nature of evidence, P.W.9 does not appear to be a firm witness. P.W.3 stated that they noticed that the appellant had signs of injuries on the palm. The appellant while in custody confessed his guilt and stated to have concealed the weapon of offence namely the knife on the roof, and led the police to the place of discovery. He also 11 accompanied the police to his house while the appellant pointed out the place where he had concealed the knife. P.W.9 on the instruction of the appellant brought out the knife and gave it to the police. The appellant also admitted that he had taken away the cash from the pocket of the deceased and repaid his debt and purchased saya, blouse etc. In his presence the knife M.O.IV and other articles were seized by the police. Thus, P.W.3 is the only witness who stated that the knife M.O.IV was recovered and seized consequent upon the information received from the appellant. His evidence is not consistent with the evidence of either P.W.9 or the two hostile witnesses P.Ws.2 and 10. That apart, in order to constitute an incriminating circumstance, prosecution is required to prove that the seized knife was an incriminating article. Though chemical examination report Ext.19 indicates that the knife M.O.IV as well as deceased's wearing apparels were found to be stained with human blood of AB group, no question was put to the appellant with regard to the circumstance of detection of human blood on the knife M.O.IV as indicated in the chemical examination report. Appellant's attention was also not drawn to the chemical examination report Ext.19. It is well settled that unless the circumstance appearing against an accused is put to him in his examination under Section 313 of the 12 Cr.P.C., the same cannot be used against him. In this connection, decisions in Harijan Megha Jesha -vrs.- State of Gujarat : AIR 1979 SC 1566 and in Sharad Birdhichand Sarda -vrs.- State of Maharashtra : AIR 1984 SC 1622 are relied upon. Moreover, so far as the circumstance of detection of human blood of AB group on the seized knife is concerned, not only P.W.2 stated to have seen the injuries on appellant's palm but also P.W.13 deposed that upon medical examination he found cut injuries on appellant's palm and fingers. Appellant's blood grouping having not been done, no inference can be done on the basis of the chemical examination report that blood stain detected on the seized knife was that of the deceased and not that of the appellant. Thus, Prosecution is not only found to have failed to adduce cogent evidence in support of the circumstance of recovery and seizure of knife M.O.IV but also the said circumstance cannot be utilized against the appellant.
11. Thus, circumstance of the deceased to have been last seen in the company of the appellant as deposed to by P.W.1 is the only circumstance which can be stated to have been brought on record by the prosecution. The dead body was discovered about twenty four hours after P.W.1 stated to have last seen the deceased. That apart, the prosecution having failed to prove any other circumstance 13 indicating complicity of the appellant with the offence, sole circumstance that the deceased was last seen in the company of the accused may at best form a link in a chain. But the prosecution has not been able to establish any chain in the present case. In Inderjit Singh and another -vrs.- State of Punjab : AIR 1991 SC 1674 it bas been pointed out by the Supreme Court that in number of cases it has been held that the only circumstance that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused.
12. In view of the above discussion, the appeal is allowed. The impugned judgment and order dated 31.1.2003 passed by learned Additional Sessions Judge, Nuapada in Sessions Case No.36/6 of 2002 convicting and sentencing the appellant to undergo imprisonment for life under section 302 of the I.P.C. are set aside. Appellant-Debi Charan Sunani is acquitted of the said charge. He be set at liberty forthwith unless his detention is required otherwise.
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B.K. Patel, J.
L. Mohapatra, J. I agree.
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L. Mohapatra, J.
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Orissa High Court, Cuttack,
The 12th April, 2012/Palai