Panchu @ Panchunath Pradhan And Others vs State Of Orissa on 23 November, 2020

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Orissa High Court

Panchu @ Panchunath Pradhan And Others vs State Of Orissa on 23 November, 2020

Equivalent citations: AIRONLINE 2020 ORI 204

Bench: S. K. Panigrahi

 AFR
                  HIGH COURT OF ORISSA: CUTTACK
                          CRA No.90 of 2001
      (From the judgment dated 23.03.2001 passed by Sri S.K. Nayak,
      O.S.J.S., Additional Sessions Judge, Angul in Sessions Trial
      No.23-Aof 1999/10 of 1999)


      Panchu @ Panchunath Pradhan and others ...        Appellants
                                Versus
      State of Orissa                           ...     Respondent


            For Appellants:     Shri G. K. Mohanty, G. P. Samal,
                                P.K. Panda, M. Das and A.K. Beura,
                                Advocates

            For Respondent :    Shri Jyoti Pattnaik,
                                Additional Government Advocate


                                M/s. R.P. Mohapatra and N. Mishra
                                (for Informant)


      PRESENT

            THE HONOURABLE KUMARI JUSTICE S. PANDA
                              AND
              HON'BLE SHRI JUSTICE S. K. PANIGRAHI

      Date of Hearing - 20.10.2020   Date of judgment -23.11.2020

S. K. Panigrahi, J.

This Criminal Appeal is directed against the impugned judgment and order dated 23.03.2001 passed by the learned Additional Sessions Judge, Angul in Sessions Trial No.23-A of 2 1999/10 of 1999corresponding to G.R. Case No.274 of 1998 of the Court of the learned S.D.J.M., Angul. The present appellants have been convicted under Sections 302 and 34 of IPC and have been sentenced to undergo Imprisonment for life.

2. Brief facts of the case are stated hereunder for appreciation of the rival legal contentions urged on behalf of the parties:

(a) The case of the prosecution is that on 17.06.1998 at 2 A.M., the informant (also P.W.6) who is the son of the deceased reported orally before the O.I.C., Chhendipada Police Station, wherein he stated that while returning home he heard the shout of his mother. Thereby he proceeded to the spot of the occurrence and saw that his mother is lying unconscious and his father is dead. The informant immediately came back to his house and called his elder brother, uncles and ran to the spot with water.

After gaining consciousness, his mother (P.W.9) who is the sole eye-witness reported that she heard the shout of the deceased while she was waiting for him near the veranda and when she came to the spot of occurrence, she found 3 the accused persons assaulting the deceased. After perceiving the incident his mother shouted and lost her consciousness and the accused persons fled from the crime spot. These facts are appropriately reflected in the statement recorded under Section 161 of Cr. P.C.

(b) The prosecution has further submitted that cases of several land disputes have been continuing between the appellant Nilamani Pradhan and the deceased for the property of Ujala Pradhan, wife of Late Dibakar Pradhan. Finally, said Ujala Pradhan had registered all the landed property of Dibakar Pradhan in the name of Anchal Pradhan. Recently, when Parcha was issued in the name of Anchal Pradhan, the appellants constrained to resort to killing Anchal Pradhan, the father of the informant. These facts about the continuing civil disputes have been appositely reflected in the statement recorded under Section 161 of Cr.P.C. He further stressed that the statement of PW-9, the wife of the deceased is corroborated by PW-6(son of the deceased) and some other witnesses. The confession leading to discovery of weapon 4 under Section 27 of the Indian Evidence Act also leads towards conviction of the appellants.

(c) The stand of the defence in the present case is of complete denial of the alleged occurrence and perfidious implication on account of family dispute and prior grudge which reached to its peak. The defence has claimed that the appellants have been inappropriately dragged into the case due to some old and continuing land disputes between them.

(d) The Prosecutor has examined as many as eleven witnesses while the defence has not examined any witness. It is pertinent to note here that PW 3, PW 4 and PW 7 (post-occurrence witnesses) turned hostile during cross examination before the learned Additional Sessions Judge.

3. Learned Counsel for the Appellants submits that there is absolutely no basis or grounds whatsoever to prove the complicity of the appellants in the said inculpatory act. Further, there is no prima-facie case to point out guilty against these appellants under Section 302/34 IPC. He emphatically submits 5 that the learned trial court has erred in appreciating the fact and in law in proper perspective so as to come to a proper conclusion that evidence of P.W.9 receives support from the evidence of P.Ws.1, 3, and 6. However, the evidence of P.W.9 has remained uncorroborated, for which the learned trial court should not have placed reliance on the uncorroborated testimony of P.W-9. Several pronouncements of the Supreme Court have held that the combined result of Sections 133 read with illustration (b) to Section 114 of the Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of the interested ocular witness. He further submitted that several omissions and contradictions have come in the way of inspiring confidence about evidence especially with respect to the statements of P.Ws.1, 3 and 6 and P.W. 9. Therefore, in the instant case there is absolutely no direct evidence against the appellants and the prosecution's case is completely based on circumstantial evidence hence creditworthiness of the evidence gets seriously impeached. The investigation does not seem to have been in the direction in 6 which it ought to have been since the important link in the chain of circumstances linked to the crime is missing.

4. Thirdly, he has submitted that the statement u/s 27 of the Evidence Act, which is a confession of the accused while in police custody is admissible to the extent the information given by him leading to discovery of a fact i.e. recovery of weapon of offence. In the instant case, the alleged statement of the Appellant No.1 has been recorded while the appellant was in police custody and no independent witness has supported the allegation of recovery of weapon of offence at the instance of Panchunath Pradhan. Further, the probative value of the statement that led to discovery of the Tangia is doubtful. Moreover, the alleged statement recorded under Section 27 of the Evidence Act as per Ext-6 is more of a confessional statement than a statement recorded under Section 27 of the Evidence Act and the same is not admissible under the law. Therefore, there is no evidence to implicate the appellants. Hence, the impugned judgement passed by the learned Additional Sessions Judge is erroneous and liable to be quashed.

5. Learned Counsel for the State has submitted that reliance should be placed on the statements of the sole eye-witness P.W.9. Learned Counsel while relying on the case of Ramajee Surya vs State of Maharashtra1 has submitted that there is no doubt that even where there is only a sole eye-witness for a crime, a conviction may be recorded against the accused concerned provided the court which hears such witness and regards him as honest and truthful. But prudence requires that some corroboration should be sought form the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested. In this case the evidence of P.W.9 receives support from the evidence of P.Ws.1, 3 and 6. P.Ws.1, 3 and 6 all deposed that after regaining sense P.W.9 informed them that the accused persons assaulted her husband. Therefore, it cannot be said that the evidence of P.W.9 remains uncorroborated. Further he has submitted that a close relative cannot be treated as an interested witness.

1 AIR 1983 SC810.

6. Secondly, he has submitted that P.Ws.1, 2, 3, 6 and 9 all deposed that the accused persons and Anchal litigated for the land as the land of Ujala was recorded in the name of the deceased. This fact is not at all disputed by the accused persons. P.Ws.6 and 9 deposed that when the land was recorded in the name of Anchal, the accused persons had threatened to kill him. The evidence of those witnesses on this point remains unshaken which proves that the accused persons had a motive and they had threatened to kill Anchal. Therefore, the judgement of the learned court below need not be interfered with.

7. Heard Sri G.K. Mohanty, learned Counsel appearing for the appellants and Sri Jyoti Pattnaik, learned Additional Government Advocate for the respondent and perused the case records.

8. It is apparent from the facts of the present case that there is a solitary eye-witness P.W.9 (wife of the deceased) and the post-occurrence witnesses, PWs.3, 4 and 7 have turned hostile.

9. After the death of the deceased, the body was sent to PW 10, the Medical Officer for post mortem. The doctor deposed 9 that he noticed five incised wounds, one lacerated injury, rupture of spleen, two bruises over back and abdomen and opined that the injuries are ante-mortem in nature and death was due to shock and haemorrhage from lungs, large vessels and spleen.

10. The evidence of an eye-witness, if credible, constitutes, needless to say, the best possible evidence. There is wealth of judicial authority for the proposition that conviction may rest on the sole testimony of an eyewitness, sans any other evidence, provided, always, the evidence of the eyewitness is absolutely credible. In a recent case of Dalip Kumar v State of Delhi2, Delhi High Court iterated that:

"14.As the value of evidence increases, however, so does the rigour and strictness of the scrutiny to which the evidence is required to be subjected. While, therefore, upholding the principle that conviction can rest on the sole testimony of an eye-witness, without any supportive evidence whatsoever, the Supreme Court has, been at pains to also hold that, in all such cases, the credibility of the evidence of the eye-witness is required to be conclusively established. For this, the court is required to assess, among other things, the 2 CRL.A.45/2002 &Crl. M.A.10587/2019.

evidence of the eye-witness, as tendered during investigation, when compared with his evidence during trial, and to examine whether the evidence, tendered during trial, is cogent and coherent, and free from any disabling inconsistencies, as well as the extent to which the evidence of the eye-witness is consistent with the evidence of other witnesses, tendered during trial. While embarking on this exercise, needless to say, the court is required to be mindful of the distinction between minor, and major, inconsistencies, and may only take cognizance of those inconsistencies which dent the case of the prosecution. At the same time, inconsistencies, even if minor, may, if they are sufficiently large in number, substantially weaken the credibility of the testimony of the witness concerned.

15. In the ultimate eventuate, these are all factors of which the criminal court is bound, by oath, to be duly sensitised. At all times, the court is required to be alive to the fact that the facts, cumulatively seen, and the evidence, holistically assessed, may exonerate the accused, or may cast doubt on his guilt, and to the legal position that,in either case, the accused is entitled to acquittal."

Further the Supreme Court in the case of Amar Singh vs State (NCT of Delhi)3, iterated that:

Criminal Appeal No. 335 of 2015 and Criminal Appeal No. 336 of 2015.

"16.There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.

32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eye witness of the murder of the deceased. Both the Learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW-1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness. Similar view has been taken by a Three Judge Bench of this Court in the case of Selvaraj v. The State of Tamil Nadu4wherein on an appreciation of evidence the prosecution story was found highly 4 (1976) 4 SCC 343.

improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside."

However, in the present case there are several inconsistencies and omissions in the statements given by P.W.9 to the Investigating Officer and the statements deposed in the Sessions Court. The entire statement of P.W.9 is inherently probabilistic in nature and highly unsafe without corroboration from other pieces of evidence. Further, the Trial Court has believed that the evidence of P.W.9 receives support from the evidence of P.Ws.1, 3 and 6, but on a vivid scrutiny, it is seen that the evidence of P.Ws.1, 3, 6 and 9 are inconsistent and does not corroborate with each other. If the evidence of those witnesses is read together along with the evidence of P.Ws.3 and 7, it cannot be relied on the deposition that P.W.9 had seen the assault on her husband or the assaulters.

11. The time tested principle is that evidence has to be weighed and not counted wherein the edifice of Section 134 of the Evidence Act stands. The test is whether the evidence has a ring of truth, is cogent, credible, and trustworthy, or otherwise. If we examine the instant case on that touchstone, the entire 13 story is based on circumstantial evidence, suspicion without substantiating by cogent evidence. Circumstantial evidence without cogent evidence is not enough to prosecute an accused. It is an enduring principle that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. Further, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court, as held in the case of Bharat vs. State of M.P.5 5 (2003) 3 SCC 106.

In the case of Sharad Birdhichand Sarda v. State of Maharashtra6, the Supreme Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must be established:

"152. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

(1984) 4 SCC 116 15 Further in the case of Navaneetha krishnan vs The State7, the Supreme Court while allowing the appeal of the accused opined that:

"23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the Accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to Rule out a reasonable likelihood of the innocence of the Accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the Accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true"

and "must be true" and the same divides conjectures 7 AIR2018SC2027.

from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the Accused, no one had committed the offence, which in the present case, the prosecution has failed to prove."

12. According to Section 3 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists consistent with the proven facts, and it must flow naturally, reasonably, and logically. Either the Court believes that the fact exists, or the Court considers existence of the fact probable. There is no indication in Section 3 of the Evidence Act that a fact can be said to be proved, even when the Court entertains a reasonable doubt as to whether the fact exists or not. The Rajasthan High Court in the case of Jaleb Khan And Ors. vs 17 The State of Rajasthan8 while discussing regarding the element of probability in relation to conviction of the accused opined that:

23. It may be mentioned that while appreciating the evidence in a criminal case, the Court should keep in view the two cardinal principles that the guilt against the accused must be proved beyond the reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by them as it lays on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of the probability.

The doctrine of preponderance of the probability was discussed in the case of Rishi Kesh Singh And Ors. vs The State9:

62. On the basis of the definition of the words "proved", "disproved" and "not proved'', as contained in Section 3 of the Evidence Act, a similar inference can be drawn. The term "proved" is defined as below:-

"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

RLW 2005 (3) Raj 1986.

AIR 1970 All 51 18 When the evidence is of an overwhelming nature and is conclusive, there shall exist no dispute, nor shall there be any doubt and the Court can say that the fact does exist, but in criminal trials, where the accused claims the benefit of the Exception, there cannot be any evidence of such a nature. Very often there is oral evidence which may be equally balanced. In the circumstances, the case of the prosecution or of the defence has to be accepted or rejected on the basis of probabilities. Section 3 of the Evidence Act by itself lays down that a fact is said to be proved when, after considering the matters before it, the Court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is what is meant by the "test of probabilities" or the "preponderance of probabilities." The decision is taken as in a civil proceeding.

63. To avoid repetition it can here be mentioned that the law with regard to the discharge of burden of proof by the prosecution, or by the defence against whom a presumption can be drawn under Section 105 of the Evidence Act, is as detailed in K.M. Nanavati vs. State of Maharashtra10, and whether the accused has been able to discharge the burden of proof is to be judged on the basis of the "test oil probabilities" or the 10 AIR 1962 SC 605 19 "preponderance of probabilities" in the same manner as the Court records a finding in a civil proceeding. This rule applies to the accused. A more rigorous proof is called for from the prosecution which must establish its case beyond reasonable doubt.

The present case has turned out to be a prosecutor's nightmare since he has failed to corroborate the evidences of the witnesses specifically PW-9 and due to the lack of cogent evidence, the prosecution has not been able to establish the case beyond reasonable doubt leading to showcasing the preponderance of probabilistic assumptions.

13. The evidence adduced by the prosecution failed to extract a moral certainty excluding reasonable doubts. For evidence introduced and to be made admissible in courts, requires a degree which should exclude falsity and help expose the correct facts in a trial. Witnesses disputably stand at the pinnacle of this justice delivery sequence. The testimony should be such that it makes the situation inferable while maintaining a favourable attitude towards the side for whom the statement is being given. When the witnesses are not able to depose correctly or turn 'hostile' in the court of law, it shakes public confidence in the criminal justice delivery system. The 150 years' old 20 Benthamian percept of "witnesses are the eyes and ears of justice" is facing trust deficit in the instant case. It seems the 'eyes and ears' have defied the prosecution in this case, the prosecution has failed to prove the guilt of the Appellants beyond reasonable doubt as the prosecution witnesses Nos.2, 3, 4 and 5 have turned hostile. Their alleged statements made to the police Under Section 161 of Code of Criminal Procedure were not confronted to them and marked as exhibits and further the I.O. has not stated in his evidence anything about the alleged statements of the above hostile witnesses recorded under Section 161 of Code of Criminal Procedure as held by this Court in three Judge Bench in the case of V.K. Mishra v. State of Uttarakhand11:

"15. Section 162 Code of Criminal Procedure bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police Under Section 161(1) Code of Criminal Procedure can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 161(1) Code of Criminal Procedure. The statements Under 11 (2015) 9 SCC 588 21 Section 161 Code of Criminal Procedure recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused Under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-

examination of the witness if necessary.

16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Code of Criminal Procedure "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction." Nonetheless, even at the advent of hostility, the court expects the prosecution to endeavour in corroborating the 'hostile' testimonies as a last-ditch effort into buttressing its side of the 22 story. However, the 'defeatism' of the prosecution is uninspiring as no such effort seems to have been made. The zealous over generalization of the prosecution fails consequently, since the testimonies of the witnesses in this case are inadmissible in its entirety.

14. The Investigating Officer has grossly failed to corroborate the prosecution story. Only seizing the weapon used in the crime and other articles at the instance of the accused, do not indicate that the accused appellants are the brain behind the crime. The entire circumstantial evidence fails to show beyond reasonable doubt regarding the involvement of the accused appellants. The submission of the prosecution has also dotted with probabilities and based on circumstantial evidence, which cannot be taken as a solid piece of evidence. Thus, the prosecution has grossly failed to prove the charge against the accused appellants beyond all reasonable doubts under Section 302 of IPC. Learned Additional Sessions Judge has failed to appreciate the case in proper prospective in the light of the evidence on record.

15. In the light of the totality of the circumstances surrounding this case, we find that the accused appellants are not guilty under Section 302 and 34 of IPC. Hence, the Criminal Appeal filed by the appellants stands allowed. The judgment of conviction and order of sentence dated 23.03.2001 passed by the learned Additional Sessions Judge, Angul in Sessions Trial No.23-A of 1999/10 of 1999 against the appellants is hereby set aside. Accordingly, the bail bonds of the appellants stand discharged.

The LCR be returned forthwith to the Court from which it was received.

(S.K. Panigrahi, J.) S. Panda, J. I agree.

(S. Panda, J.) Orissa High Court, Cuttack The23rdday of November, 2020/AKK/AKP

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