Orissa High Court
Panchu @ Panchanan Mohapatra vs State Of Orissa on 12 November, 2002
Equivalent citations: 95(2003)CLT189, 2002(II)OLR650
Author: B. Panigrahi
Bench: B. Panigrahi, P.K. Misra
JUDGMENT B. Panigrahi, J.
1. This appeal is directed against the order of conviction and sentence passed under Section 302, IPC by the learned 2nd Addl. Sessions Judge, Puri in Sessions Trial No. 31/165 of 1989 directing the appellant to undergo imprisonment for life.
2. The short story of the prosecution as unfolded in course of trial is as follows :
P.W. 8, Hatakishore Lenka of village Kathuaredi lodged a report at Brahmagiri Police Station by stating that on 4.8.88 around 6.00 P.M. while he was returning from his paddy field situated near Luniary Jungle he noticed that some crows were chirping Inside the jungle. Out of curiosity he along with one Rabi Baral of village Hatia went to the jungle and found an old Khurda napkin (M.O. VII) lying at the entrance of the jungle. They also marked streak of blood in the nearby area. After they advanced a little distance, they found a young man aged about 25 years lying dead beneath a mango tree with pool of blood. Such incident, however, 'aroused their suspicion that some miscreants must have committed an offence of murder. They returned to their village and disclosed the fact to the other villagers, They further brought to the notice of a constable stationed at their village. On the basis of such information the constable went along with them and found the deadbody at the scene of occurrence whereupon he guarded the deadbody and asked P.W. 8 to lodge the information-at Brahmagiri Police Station, Accordingly a report was lodged vide Ext.3 at the Police Station during the absence of the O.I.C. P.W. 11, the A.S.I, of Brahmagiri Police Station treated the report as F.I.R., Ext.3 and registered P. S. Case No. 115 of 1988 and immediately thereafter swung into action. He visited the spot along with other staff at 9.15 P.M. with P.W. 8. The deadbody was lying in the northern side of the jungle with the face upward. He waited till arrival of the O.I. C., P.W. 21, who went on duty of C.I. of Sadar P.S. and on way back after hearing about the incident he rushed towards the scene of occurrence. He sent an information to the S.P. of Puri for deputing the Police dog and scientific team of D.P.S.L., Puri. He held inquest on 5.8.88 at about 5.30 A.M. over the deadbody of the deceased and prepared the inquest report, Ext. 1, seized the blood stained earth and sample earth from the spot vide Ext. 2. Even after arrival of the Police dog no clue could be gathered so also the assistance of the scientific team was of no avail. On 5.8.88 at about 12.30 P.M. P.W. 21 despatched the deadbody for post-mortem examination to the District headquarters hospital. He recorded the statement of the witnesses. He conducted a frantic search to apprehend the appellant, but no arrest could be effected. P.W. 21 seized one knife on production by P.W. 6 vide seizure list, Ext. 9. On 6.8.88 P.W. 21 seized the Lungi (M.O. I) belonging to the deceased and also one cotton string on production by the constable after post-mortem examination vide seizure list Ext. 10. It was gathered that the deceased died of injuries which were ante mortem in nature. From the date of occurrence till 5.2.89 the appellant could not be apprehended. Finally he was arrested on 5.2.89 and forwarded on 8.2.89. On the prayer of the prosecution the S.D.J.M., Puri held T.I. parade of the accused on 14.2.89 and 21.2.89. The seized articles were sent to the Forensic Science Laboratory and on completion of investigation charge-sheet was placed against the appellant.
3. The defence plea in the trial Court was one of denial of occurrence and the appellant had claimed to have been falsely implicated in this case.
4. The motive for commission of the crime by the appellant in course of trial was however, strongly refuted by the appellant. He also denied his abscondence from the village.
5. The prosecution in all examined 21 witnesses in order to sustain conviction against the appellant. The learned trial Court basing on the circumstantial evidence was however inclined to convict the appellant for commission of murder of the deceased Magikhia @ Prasann Kumar Barik. P.Ws. 1 to 3 were witnesses to the inquest over the deadbody of the deceased. P.W. 3 also proved the seizure of the blood stained earth etc. from the spot. P.Ws. 4, 5 and 14 were the witnesses who deposed to the effect that they had seen both the appellant and deceased going together on the canal embankment towards Luniari jungle. P.Ws. 6 and 7 were the parents of the deceased. From their evidence the prosecution made an attempt to ascribe motive for commission of murder against the appellant. P.W. 8 was the informant in this case. P.Ws. 16 and 17 deposed about the association of the deceased and the appellant much prior to the occurrence. The statement of P.Ws. 9 and 10, however, disclosed that they had seen both the appellant and the deceased going together at about 2.00 P.M. on the date of incident near Harchandi Chhak. P.W. 11 was the A.S.I. P.Ws. 18 and 19 were the Magistrates who conducted T.I. parades of the appellant. P.W. 20 was the Medical Officer who conducted autopsy over the deadbody of deceased Magikhia @ Prasann Kumar Barik.
6. The death of the deceased Magikhia @ Prasann Kumar Barik son of P.W. 6 was not seriously disputed nor challenged. It was rather proved from the evidence of the prosecution that on 4.8.88 between 4.00 and 5.00 P.M. the deadbody of the deceased was lying inside the Luniary jungle beneath a mango tree surrounded by patch of blood. It is firmly established by the doctor, PW. 20 that the deceased had as many as 14 incised wounds present externally on the body of deceased Magikhia. Similarly on detection he noticed one fracture on occipital bone, another depressed fracture on the left side frontal bone. There was fracture on the left side zigoma and also on vertibra. All those injuries were ante-mortem in nature and might have been caused by sharp cutting weapon. The death was due to haemorrhage on account of multiple injuries leading to shock. Such injuries would cause death in ordinary course of nature. Therefore, it has been firmly established by the prosecution that deceased Magikhia met a homicidal death.
The prosecution case rests on circumstantial evidence in order to fasten the guilt against the appellant on the basis of last seen theory of the deceased with the appellant before the incident by P.Ws. 4, 5, 14 and 15. Another circumstance has been noted that the appellant was found absconding after the incident till he was apprehended.
7. The circumstance of abscondence has strongly weighed utmost with the mind of the trial Court that he must have been the culprit as a reason of which the appellant remained away from being arrested. In this connection the evidence of P.W. 21 gains significance. It is noted in his evidence that he had conducted search of his house for about a dozen of times. From the cross-examination it, however, transpired that on five occasions he had raided the appellant's house. To our dismay we did not notice even a single search list proved by the prosecution. No step was taken to declare the appellant as an absconder under Section 82 and 83, Cr.P.C. Abscondence itself would not be, however, a ground to raise a presumption of his implication in the crime without any further materials. On many occasions even the innocent persons to keep away from humiliation of th,e Police harassment avoid public sight. Abscondence by itself is not conclusive fact of guilt or of a guilty conscience. The very absconding may lend some weight to the other evidence establishing the guilt of the accused, but by itself it is hardly an evidence of guilt. The conduct of one making himself scares for some days is relevant under Section 8 of the Evidence Act and might be indicative to some extent of a guilty mind, but it is not the only conclusion which must lead the Court to hold a person guilty. Even an innocent person may when suspected of a grave crime be tempted to evade arrest and such is the instinct of self preservation in an average human being. Absconding is a weak-link in the chain of circumstances and even innocent person may try to keep out of the way, learning about false implication in a serious crime reported to police. Therefore, such circumstance does not militate the plea of innocence of the appellant. Apart from the evidence of P.W. 21, there has been no evidence by the prosecution to hold that soon after the date of occurrence the accused was found missing from his residence. In Shankarlal Gyarasilal Dixit v. State of Maharashtra reported in AIR 1981 SC 765 the Hon'ble Supreme Court held :
"Human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions."
It has been further held by the Supreme Court time and again that between "may be true" and "must be true" there is a long distance to travel which must be gathered by clear, cogent and unimpeachable evidence by the prosecution before the accused is condemned and convicted.
8. The prosecution made an attempt to rope in the appellant with the crime on the ground that he was seen in the company of the deceased some times before the incident. In order to prove this aspect of the case the prosecution has relied on the evidence of RWs, 4, 5, 14 and 15. From the testimony of P.W. 4 it has however appeared that at about 3.00 P.M. on the date of occurrence she noticed the appellant going in the company of the deceased Magikhia towards Luniary jungle. Some time thereafter there was a great commotion in the village that a body of an unknown person was lying in the Luniary jungle. She proceeded towards that direction and found a deadbody lying there and she could identify it to be the person whom she had seen earlier. From the cross-examination it appears that she had not seen the appellant going in the company of the deceased towards the jungle. She heard hue and cry about the incident in the evening, but did not proceed immediately thereafter. On the following morning she went to the place of occurrence and found many persons present at the spot. From her statement it has appeared that she did not utter a word to those persons who were present at the spot that she had seen the deceased going in the company of the appellant on the previous day. Therefore, such statement does not appear to be normal human conduct to keep his lips tight even not disclosing the fact to the police. The evidence of P.W. 4 has further established that she identified the appellant 8 to 10 days after the incident. If such statement is accepted on its face value, then the evidence of P.W- 21 that the appellant was absconding immediately after the occurrence is bound to be disbelieved. Even during investigation she had not stated to P.W. 21 to have seen the appellant going in the company of the deceased. But the learned trial Judge has accepted her evidence on the ground that P.W. 4 stated before the police about the appearance and the dress put on by the deceased and the appellant. On a careful study of her evidence we, however, could not gather such statement made in the Court. Therefore, it becomes doubtful as regards her statement of having seen the appellant immediately before the incident. In addition to this, the statement made to a police officer under Section 162, Cr.P.C. can never be a substantive evidence.
9. Another circumstance has been placed before the trial Court was about identification of the appellant in the T.I. Parade. The incident had taken place on 4.8.88. The T.I. Parade was conducted on 14.2.89 and 21.2.89. Therefore, it has lost its significance.
From the evidence of P.W. 4 there has been no ambiguity to hold that P.W. 4 had an occasion to see the appellant prior to the T.I. parade. P.W. 5 did not support the prosecution case. P.Ws. 6 and 7 were the parents of the deceased. From their evidence the prosecution made an attempt to prove motive of the appellant for commission of crime inasmuch as the deceased pledged some gold ornaments belonging to his sister and borrowed a sum of Rs. 1500/-. Even after payment of such amount the appellant did not part with the ornaments. Thus there was a quarrel between them which took place 8 to 10 days before the occurrence. Apart from the evidence of P.Ws. 6 and 7, there has been no other evidence to prove motive against the appellant inasmuch as during investigation no attempt was made to recover any of the golden ornaments alleged to have been pledged with the appellant nor the sister of the deceased stated to have given the ornaments to him examined. It was elicited during cross-examination of P.W. 6 that he was not present when the altercation took place between the deceased and the appellant while the former demanded return of gold ornaments. It is implicit from his evidence that he did not have any personal knowledge with regard to the golden ornaments alleged to have been pledged by his deceased son. In that view of the matter we are not in a position to accept that the prosecution was able to prove the motive for commission of murder. There is a Gramya Bank in village Kapileswar. In that case it is not understood as to why the deceased preferred to take the loan from the appellant without those ornaments being pledged in the Bank. P.W. 8 was the informant in this case. His evidence does not help much while deciding the involvement of the appellant.
10. Prosecution emphasises much on the evidence of P.Ws. 9 and 10 to prove another circumstance of last seen together of the appellant with the deceased. Even assuming their statement on its face value is correct, it would appear that the deceased as well as the appellant gave an information to them that they were proceeding towards the Palank village. P.W. 9 had seen them at Harachandi Chhak which is about 4 kilo meters away from village Palank. Therefore, there has been no proximity of place and time between the scene of occurrence and the place where P.W. 9 claimed to have seen them. P.W. 10 claimed that he had seen the appellant and the deceased at 2.00 P.M. in front of his shop. But in cross-examination it was elicited that such fact was not narrated during investigation. Therefore, the statement made by P.W. 10 in Court is nothing but a subsequent development which can hardly inspire any confidence.
11. The testimony of P.W. 14 is placed by the prosecution for proving the last seen theory of the deceased with the appellant around 4.00 P.M. But it is piquant to note that he did not make such statement during investigation. Thus such statement in Court can only be regarded to be a subsequent development just to rope in the appellant in the crime.
12. The law relating to circumstantial evidence in clear and unmistakable terms has been laid down by the Supreme Court in various decisions. In the case of Tanviben Pankajkumar Divetia v. State of Gujarat, [1997 (7) SCC 156] it has been held as follows :
"The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and 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. This Court has clearly sounded a note of caution that 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 have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that 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 doubts. It has been held that 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. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions."
The Hon'ble Supreme Court in a recent judgment reported in AIR 2002 SC 293 in the case of Sudama Pandey and others v. State of Bihar relying on a previous Gujarat case held in the following manner.
"The entire evidence adduced by the prosecution would only go to show that the prosecution witnesses found these appellants in the vicinity of the place where the deadbody was found. These appellants were not found under any suspicious circumstances. All the appellants belong to the same village. If they were found sitting together or found walking along the road, that by itself is not an incriminating circumstance pointing to the guilt of the deceased."
The knife was alleged to have been seized on production by the father of the deceased and not from the appellant's possession. No incriminating evidence, however, was noticed from the weapon of offence nor there has been evidence worth the same as to how it was seized from P.W. 6.
13. Therefore, the prosecution has utterly failed to establish by clear, cogent and clinching evidence that the appellant was found in the company of the deceased close to the proximity of time and place to rule out any other hypothesis or probabilities. From the preponderance of evidence, we are however unable to arrive at the positive conclusion that the appellant was seen in the company of the deceased at a nearby place of occurrence. Accordingly, the findings of the learned Addl. Sessions Judge against the appellant appears to be invalid, unreasonable and based on surmises.
14. In the result, disagreeing with the observation of the learned trial Court, we allow the appeal and set aside the order of conviction and sentence passed against the appellant. The bail bond of the appellant is hereby cancelled.
CH. P.K. Misra, J.
15. I agree.