Orissa High Court
Panda Alias Maheswar Sanangi vs State Of Orissa on 5 January, 2016
Author: S.K. Sahoo
Bench: Vinod Prasad, S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 92 Of 2012
From the judgment and order dated 25.09.2012 passed by the
Adhoc Addl. Sessions Judge, Fast Track Court, Keonjhar in S.T.
Case No.32/43 of 2012.
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Panda @ Maheswar Sanangi ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant - Mrs. Susamarani Sahoo
For Respondent - Mr. Janmejaya Katikia
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S. K. SAHOO
........................................................................................................................
Date of Argument- 24.11.2015 Date of Judgment- 05.01.2016
.......................................................................................................................
S. K. SAHOO, J.The appellant Panda @ Maheswar Sanangi along with one Bisu Sanangi were charged under section 302/34 of Indian Penal Code by the learned Adhoc Addl. Sessions Judge, Fast Track Court, Keonjhar in S.T. Case No.32/43 of 2012 for committing murder of one Sukura Danayak (hereafter 'the 2 deceased') on 14.08.2011 at about 6.00 p.m. in village Rangadihi in furtherance of their common intention. They were also charged under section 201/34 of Indian Penal Code for causing disappearance of certain evidences connected with the crime in furtherance of their common intention.
During course of trial, on enquiry, the co-accused Bisu Sanangi was found to be less than eighteen years as on the date of the occurrence i.e. on 14.08.2011 and accordingly he was held by the learned trial Court, vide order dated 31.07.2012, to be a juvenile in conflict with law and his case was sent to Juvenile Justice Board, Keonjhar. So far as the appellant is concerned, though inquiry was conducted but in terms of ossification test report, he was found not to be a juvenile in terms of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007.
The learned trial Court found the appellant guilty under sections 302/34 and 201/34 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months for the offence under section 302/34 IPC. The appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default, to undergo 3 rigorous imprisonment for six months for offence punishable under section 201/34 of Indian Penal Code and both the substantive sentences were directed to run concurrently.
2. The prosecution case, as per the First information report (Ext.1) presented by Routa Sanangi (P.W.1) on 18.08.2011 before the Officer in-charge, Kanjipani Police Station, in the district of Keonjhar is that the deceased was his father-in- law and on 14.08.2011 at about 3.00 p.m. the deceased had a quarrel with the appellant and co-accused Bisu Sanangi as he was suspected to be practicing witchcraft and both the accused threatened the deceased with dire consequence. When the informant and some of the co-villagers prevented the accused persons, they left the spot but again during evening hours at about 6.00 p.m., there was quarrel between the parties and the deceased was dragged by the accused persons towards the river which was seen by others and since then the deceased was not traceable. In that connection, the informant presented a missing report on 16.08.2011 in Kanjipani Police Station and the deceased was also searched. On 17.08.2011 evening, the cadaver of the deceased was found lying inside river Kakharua. The informant and other villagers guarded the dead body throughout the night and the First Information Report was presented in the morning. The informant suspected that on 4 14.08.2011 during the evening hours, the accused persons after killing the deceased might have thrown the dead body in Kakharua river. The dhoti which was worn by the deceased was found lying on the river embankment.
On the basis of the First Information Report, Abhaya Prasad Kar (P.W.12), who was attached to Kanjipani Police Station as officer-in-charge registered Kanjipani P.S. Case No. 27 dated 18.08.2011 under sections 302/201/34 of Indian Penal Code against the appellant and Bisu Sanangi and himself took up investigation of the case.
3. During course of investigation, P.W.12 examined the informant, visited the spot and prepared spot map Ext.11. He seized dhoti of the deceased lying at the spot along with blood stained earth and sample earth and prepared seizure list Ext.7. He also conducted inquest over the dead body and prepared inquest report Ext.2. He sent the dead body to District Headquarters Hospital, Keonjhar for post-mortem examination. P.W.8 Dr. Padma Lochan Mahanta who was attached to District Headquarters Hospital, Keonjhar as O & G Specialist conducted post-mortem examination and opined the cause of death due to ante mortem asphyxia.
The Investigating Officer (P.W.12) seized the wearing apparels of the deceased along with command certificate on 5 production by Constable G. Naik and prepared seizure list Ext.6. He arrested the accused persons on 18.08.2011 and seized their wearing apparels. The appellant while in custody confessed his guilt and accordingly his confessional statement was recorded vide Ext.4. The accused persons were sent to District Headquarters Hospital, Keonjhar for collection of their nail clippings and blood samples and after collection, the same were seized under seizure list Ext.5. The appellant was forwarded to the Court of learned S.D.J.M., Keonjhar on the next day of his arrest. On 28.09.2011 the I.O. received the post-mortem examination report which revealed the cause of death to be homicidal. On 20.10.2011 the I.O. sent the seized material objects to SFSL, Rasulgarh, Bhubaneswar through the Court of S.D.J.M., Keonjhar for chemical analysis. On 8.12.2011 the I.O. submitted charge sheet against the accused persons under section 302/201/34 IPC.
4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302/34 and 201/34 of Indian Penal Code on 03.05.2012 and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 6
5. During course of trial, in order to prove its case, the prosecution examined twelve witnesses.
P.W.1 Rout Sanangi is the informant in the case and he is the son-in-law of the deceased and he has stated about the threatening given by the accused persons to the deceased on the date of occurrence.
P.W. 2 Arjuna Parihala stated about dragging of the deceased by the accused persons towards river Kakharua from Mandaghara of the village suspecting the deceased to be practicing witchcrafts. He is a witness to the inquest vide inquest report Ext.2.
P.W.3 Anadi Barik is a witness to the inquest over the dead body of the deceased P.W.4 Choudhury Sanangi stated about disclosure made by the accused persons before him to commit the murder of the deceased as he was practicing witchcrafts. He further stated that the accused persons dragged the deceased towards the lower level of village Talapada.
P.W.5 Manas Ranjan Khanari was the home guard attached to Kanjipani Police Station who is also a witness to the seizure. He proved seizure lists Ext.5 and Ext.6.
P.W.6 Hrudananda Sanangi stated about the dragging of the deceased by the accused persons and telling that the 7 deceased would not be seen alive after passing of the night. He is also witness to the inquest. He proved the seizure list Ext.7.
P.W.7 Bandhal Danayak is witness to the seizure who proved seizure lists Ext.8 and Ext.9.
P.W.8 Dr. Padmalochan Mahanta conducted post- mortem examination over the dead body of the deceased and proved his report vide Ext.10.
P.W.9 Jagabandhu Dehury did not support the prosecution case for which he declared hostile.
P.W.10 Mohan Sanangi stated that the dead body of the deceased was found lying at forest area of Kakharua river which is locally known as Putulipani.
P.W.11 Makuban Sanangi stated about dragging of the deceased by the accused persons and about noticing the dead body of the deceased in Kakharua river.
P.W.12 Abhaya Prasad Kar is the Investigating Officer.
The prosecution exhibited thirteen documents. Exts.1 is the FIR, Ext.2 is the inquest report, Ext.3 is the confessional statement of co-accused Bisu Sanangi, Ext.4 is the confessional statement of the appellant, Exts.5, 6, 7, 8 and 9 are the seizure lists, Ext.10 is the post-mortem report, Ext.11 is the spot map, Ext.12 is the dead body challan and Ext.13 is the forwarding 8 report of the material objects to S.F.S.L., Rasulgarh, Bhubaneswar.
6. The defence plea of the appellant was one of denial and it was pleaded that he has been falsely entangled in the case.
7. The learned trial Court has been pleased to held that the death of the deceased was homicidal and the deceased and the accused were last seen together in an unusual manner when the deceased was forcibly dragged by the accused persons and the accused persons were in warring mood. The learned trial Court further held that the possibility of any other person or persons other than the accused persons being the perpetrators of the crime is not at all possible.
8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.2, the prosecution has also relied upon the evidence of P.W.8 Dr. Padmalochan Mahanta who was attached to District Headquarters Hospital, Keonjhar as O & G Specialist and he conducted post mortem examination over the dead body of the deceased on 18.08.2011 and found ante mortem injury marks over both the hands which were opined to be pressure mark. No ligature mark was found. Petechial haemorrhage was found below the anterior surface of neck and over trachea. The cause of death was opined 9 to be ante mortem asphyxia. The post-mortem report was marked as Ext.10.
The learned trial Court has held that there was no compelling reason to differ from the prosecution assertion of homicidal cause of death of the deceased.
Accordingly to the medical science, a petechial hemorrhage is a tiny pinpoint red mark that is important sign of asphyxia caused by some external means of obstructing the airways. They are sometime also called petechiae. Their presence often indicates a death by manual strangulation, hanging or smothering. The hemorrhages occur when blood leaks from the tiny capillaries in the eyes, which can rupture due to increased pressure on the veins in the head when the airways are obstructed. If petechial hemorrhages and facial congestion are present, it is a strong indication of asphyxia by strangulation as the cause of death. Petechial hemorrhage are seen in the conjunctiva of the eyes and also on the eyelids, especially after hanging. They may also be found elsewhere on the skin of the head and face, such as in the mucous membrance inside the lips and around or behind the ears. When found in a case of suspect hanging, the presence of petechial hemorrhages strongly suggests the victim was hung when still alive. This helps to distinguish hangings staged to make a murder look like a suicidal 10 act. Petechial hemorrhages on the face are also found in other conditions such as cardiac arrest. Petechial hemorrhage may also occur post mortem as the capillaries start to break down, but these lesions tend to be rather bigger than pinpoint size and may blur into one another rather than occurring as distinct groups.
P.W.8 has stated into the cross examination that due to drowning in the deep water, asphyxia is likely to occur.
After perusing the evidence on record, the post- mortem examination report Ext.10, the statement of P.W.8 Dr. Padmalochan Mahanta and the medical science, we are of the view that the findings of the learned trial Court regarding the nature of death of the deceased to be homicidal is not based on any clinching materials and therefore we cannot concur with such findings rather we are of the view that prosecution has failed to establish that cause of death of deceased is homicidal in nature.
9. Mrs. Susamarani Sahoo, learned counsel for the appellant adopted a short-cut method and without placing the appeal on merit, she contended that since during pendency of the appeal, as per the direction of this Court, an enquiry was conducted by Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Keonjhar and the appellant was found to be fifteen years one month and twenty nine days as on the date 11 of occurrence and he was a Juvenile in conflict with law on the date of occurrence as per the definition under section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, his sentence of imprisonment should be quashed in view of ratio laid down by the Hon'ble Supreme Court in case of Indradeo Sao - Vrs- State of Bihar reported in 2015 (5) SCALE 600.
Mr. Janmejaya Katikia, learned Additional Government Advocate did not challenge the contentions raised on behalf of the appellant's counsel in view of the settled position of law.
Since it is an appeal against conviction of the appellant under sections 302/34 and 201/34 of IPC and imposition of sentence of life imprisonment, we think it proper to adjudicate the matter on merit before considering the prayer for sentence only on the basis of the decision of the Hon'ble Supreme Court.
10. Admittedly there is no direct evidence in the case and the case is based on circumstantial evidence. The circumstances against the appellant are that he and the co-accused Bisu Sanangi quarreled with the deceased and threatened him with dire consequence on the date of occurrence suspecting that the deceased was practicing witchcraft. The further circumstances are that both the accused persons dragged the deceased from 12 Mandaghara of the village towards Kuakhia river on 14.08.2011 whereafter the deceased was seen alive.
P.W. 1 who is informant in the case has stated that on the date of occurrence the accused persons threatened the deceased suspecting him to be practising witchcrafts and when a quarrel ensued between the deceased and the accused persons, he separated them and left the house. P.W.1 has further stated in the evidence that in the evening hours, the accused persons forcibly took the deceased to Mandaghara which is a place in the village used for seating of the villagers and from there, the accused persons took the deceased towards Kuakhia river and since then the deceased did not return.
P.W. 1 is none else than the son-in-law of the deceased and he is the person who lodged the missing report before Kanjipani Police Station on 16.08.2011 wherein he has stated that on 14.08.2011 (Sunday) afternoon, the appellant and co-accused Bisu Sanangi assaulted the deceased during course of quarrel and threw the body into Kakharua river. On the basis of such missing report, Kanjipani police Station Diary No.309 dated 16.08.2011 was registered. P.W.1 has stated in his evidence that he guessed his father-in-law might have been murdered by the accused persons. Forcible taking of the deceased as has been stated by P.W.1 in Court is not reflected in 13 the station diary entry. The same has also not been stated before the Investigating Officer in the statement recorded under section 161 Cr.P.C. as has been proved by the defence after confrontation to P.W.1. P.W. 1 has not stated about any assault by any of the accused persons to the deceased in his presence in the evidence in Court. Therefore the only evidence of P.W.1 left behind which is consistent with the facts narrated in the missing report as well as the previous statement before police is that he was a witness to the quarrel between the accused persons and the deceased. The quarrel took place on 14.08.2011 and the dead body was recovered on 17.08.2011 in river Kakharua.
In case of Sunil Ray -Vrs- Union Territory reported in AIR 2011 Supreme Court 2545, it is held that the vacillations in the deposition of the prosecution witness relating to evidence of last seen cannot be brushed aside as 'minor discrepancies' especially when it is to form the basis for life sentence.
Specific questions were put by the defence to the Investigating Officer relating to contents of missing report presented by the informant (P.W.1) on 16.08.2011 as well as the Station Diary entry made on the basis of such missing report. The Investigating Officer has stated that he has not seized the Station Diary Entry but the missing report was incorporated in 14 the Station Diary and he has mentioned it in the case diary. He further submits that in the missing report although the complicity of the accused persons about the commission of murder was not mentioned but in the missing report, the informant had mentioned that the accused persons assaulted the deceased, dragged him and threw him in Kakharua Nala. Since the missing report as such was not proved in the case nor the Station Diary Entry, therefore in order to ascertain the correctness of the statement made by the Investigating Officer regarding the contents of the missing report, we verified the case diary in the interest of justice and found that in the case diary while extracting the contents of the missing report, the Investigating Officer has not mentioned that the accused persons dragged the deceased though he has mentioned about the quarrel, assault (which he has not stated in the Court) and throwing of the body into Kakharua river (to which he had no personal knowledge).
When questions were asked by the defence counsel on the vital aspects of the prosecution case relating to the missing report of the deceased and its reflection in the Station Diary Entry which has got nexus with the last seen theory, in all fairness it was expected of the investigating officer to speak truth that P.W.1 has not mentioned about the dragging part in 15 the missing report. When the I.O. had neither seized the missing report nor the station diary entry but only mentioned the contents of the missing report in the case diary, he should have been careful enough to answer correctly about the same. The false statement given by the investigating officer that the dragging part of the deceased is also mentioned in the missing report is contrary to the noting in the case diary. Such a conduct is deplorable.
The investigating officer plays a very pivotal role in the dispensation of criminal justice and error in the investigation may result in miscarriage of justice. The police officers have been given great latitude under Code of Criminal Procedure to exercise their power to make a successful investigation. They have been given free liberty to collect necessary evidence in order to assist the Court to arrive at a just decision of the case. The duty of the investigating officer is to ascertain the correct set of facts and present truth before the Court of law. It is equally the responsibility of the investigating officer while deposing in Court, to the questions put by either the public prosecutor or the defence counsel or even by the Court, to make correct statement with reference to the case diary. A misleading statement or a false statement by the investigating officer just out of sheer over anxiety for the success of the prosecution is 16 unwarranted and it is not only playing fraud on the temple of justice but would also be detrimental to the interest of justice.
We are conscious of our power of use of the case diary. There is no dearth of power on the part of a Criminal Court to call for and use the case diary in the aid of an enquiry or trial. Court can certainly peruse the case diary if any doubt creeps in regarding the sanctity of the investigation or bonafide conduct of investigating officer in investigating the case. However it does not give unfettered power to place reliance on the case diary as a piece of evidence directly or indirectly.
In case of Khatri and Ors. -Vs.- State of Bihar and Ors. reported in AIR 1981 SC 1068, it is held as follows:-
"5......The Criminal Court holding an inquiry or trial of a case is therefore empowered by sub- section (2) of Section 172 to send for the police diary of the case and the Criminal Court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of sub-section (3) of Section 172, merely because the case diary is referred to by the criminal Court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the Criminal Court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of Section 161 of the Code or Section 145, as the case may be, of the Indian Evidence Act would 17 apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used. It will thus be seen that the bar against production and use of case diary enacted in Section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the Criminal Court uses it for the purpose of contradicting such police officer."
In case of Mukund Lal -Vs.- Union of India (UOI) reported in AIR 1989 SC 144, it is held as follows:-
"3......Under Sub-section (2) of Section 172 Cr.P.C. the Court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. It has empowered the Court to call for any such relevant case diary, if there is any inconsistency or contradiction arising in the context of the case dairy, the Court can use the entries for the purpose of contradicting the Police Officer as provided in Sub-section (3) of Section 172 of the Cr.P.C. Ultimately there can be no better custodian or guardian of the interest of justice than the Court trying the case. No Court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries."18
In case of Md. Ankoos -Vs.- The Public Prosecutor reported in AIR 2010 SC 566, it is held as follows:-
"24. A Criminal Court can use the case diary in the aid of any inquiry or trial but not as an evidence.This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. Court's power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly."
In Sidharth and Ors. -Vrs.- State of Bihar 2005 Criminal Law Journal 4499, it was held as follows:
"27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub- clause (3) of Section 172 that neither the 19 accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross- examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of Cr.P.C."20
In case of Mahabir Singh -Vrs.- State of Haryana reported in AIR 2001 SC 2503, it is held as follows:-
"14. A reading of the said sub-sections makes the position clear that the discretion given to the Court to use such diaries is only for aiding the Court to decide on a point. It is made abundantly clear in Sub-section (2) itself that the Court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the Court uses the entries in a case diary for contradicting a police officer, it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the Court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the Court from using the power under Section 172 of the Code for the purpose of explaining the contradiction."
In case of Malkiat Singh -Vs.- State of Punjab (1991) 4 SCC 341, it is held as follows:-
" 11. It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to 21 ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the Court. It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the evidence Act, the entries cannot be used by the accused as evidence."
Assessing the evidence of P.W.1, his previous statement before police as well as the facts which he has narrated in the missing report, we are of the view that P.W.1 has only seen the quarrel between the accused persons and the deceased on the date of occurrence and he is neither a witness to the assault part nor dragging part nor throwing of the dead body of the deceased in the Kakharua river.
22
Coming to the evidence of P.W.2, he has stated that on the date of occurrence the accused persons dragged the deceased from Mandaghara of the village towards river Kakharua. He has further stated that the accused persons quarreled with the deceased suspecting that he was practising witchcraft and three days after such dragging and taking away of the deceased, the dead body was found in the Putulipani river. P.W.2 has stated in the cross-examination that when the quarrel was going on, he was present in his house but when he came to the spot of quarrel, nobody was present there. This statement of P.W.2 creates doubt regarding he being a witness to the dragging part of the deceased from Mandaghara of the village towards river Kakharua.
P.W.3 stated to have got information from the wife and daughter of the deceased about the quarrel between the parties and accused persons taking away the deceased. Neither the wife nor the daughter of the deceased has been examined in this case. Thus the evidence of P.W.3 is inadmissible being hear- say in nature.
P.W.4 though stated in his examination-in-chief that the accused persons dragged the deceased and took away towards lower level at the village (Talapada) but in the cross- 23 examination, he has stated that he has not seen the accused persons taking away the deceased but only heard about it.
P.W.6 though stated that the accused persons dragged the deceased from Mandaghara and took away outside of the village and committed murder of the deceased and thrown the dead body in Kukhuria Nala but it has been proved by the defence in cross-examination that he has stated before the police that the deceased absconded from the village on 14.08.2011 and on hearing about the absconding of the deceased, he came to the house of the deceased and heard that the deceased and the accused persons quarreled with each other. Thus the evidence of P.W.6 was no way helpful to the prosecution.
P.W.11 has stated that the accused persons quarreled with the deceased on the date of occurrence at about 4 p.m. and thereafter they dragged the deceased towards forest area and committed murder of the deceased. In the cross- examination he admits that he has not seen accused persons dragging the deceased from Mandaghara and he has only heard about the same.
Scanning the evidence of the aforesaid witnesses, one thing becomes very clear that except some evidence relating to threatening by the accused persons to the deceased and quarrel between them on the date of occurrence, there are no 24 other clinching materials against the accused persons. There is no acceptable evidence that the accused persons dragged the deceased from the Mandaghara of the village towards Kuakhia river. Nobody has stated that the accused persons were armed with any weapon or they were hardened criminals for which nobody could dare courage to protest their activities of dragging the deceased. There is also no evidence of any of witnesses followed the accused persons and the deceased towards the river. All these aspects create doubt about the prosecution case that after the quarrel, the accused persons dragged the deceased towards Kakharua river. There is no direct evidence that the accused persons threw the deceased after committing his murder inside the river. The investigating officer has stated that the distance of the village to Kakharua river is about 4 kilometers. The dead body was recovered three days after the occurrence. In view of such materials available on record, it cannot be said that the last seen theory which was presented by the prosecution in the form of quarrel between the parties is so clinching that it proves the guilt of the appellant. The learned trial Court observed that the deceased and the accused persons were last seen together in an unusual manner when the deceased was forcibly dragged by the appellant and another co- accused and that the accused persons were in warring mood and 25 so possibility that any other person or persons other than the accused persons being the perpetrator of the crime is not at all possible. We are afraid to say such a conclusion is based on no evidence and smacks of improper appreciation of the evidence on record.
11. Though the investigating officer recorded the confessional statement of the appellant which was marked as Ext.4 but in view of the bar under section 25 of the Evidence Act, we are not inclined to place any reliance on the same.
12. Even though the wearing apparels of the appellant were seized and sent for chemical examination but the chemical examination report has not been proved during trial.
13. Even if there are some materials that on the date of occurrence the accused persons had threatened the deceased for practising witchcraft and also quarreled with him but these two circumstances are not sufficient in itself to make a complete chain in order to arrive at an irresistible conclusion that it is the appellant who has committed the murder of the deceased. There may be some suspicion against the appellant but as is often said, suspicion, howsoever strong, cannot take the place of proof. We therefore, find and hold that the conviction of the appellant is based on completely insufficient evidence and is wholly unsustainable.
26
14. During pendency of the appeal, an application was filed by the appellant under section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with section 12 (3)(1)(c) of Juvenile Justice Rules with a prayer to make an enquiry for determining the age of the appellant as on the date of occurrence. It was contended that the appellant was a juvenile as on the date of occurrence and in support of his contention, a school leaving certificate was filed. Vide order dated 08.04.2015, we sent the copy of the application along with the school leaving certificate and the copy of the impugned judgment for an enquiry by the Juvenile Justice Board, Keonjhar to determine the age of the appellant as on the date of the commission of the offence. The report was submitted wherein it is indicated that the age of the convict as on the date of the occurrence was fifteen years one month and twenty-nine days and therefore he was a juvenile in conflict law as on the date of occurrence as per the definition under section 2(l) of Juvenile Justice Act. Basing on such report, we granted bail to the appellant on 27.07.2015.
The learned counsel for the appellant did not argue the case on merit but relied on the decision of the Hon'ble Supreme Court in case of Indradeo Sao -Vrs- State of Bihar reported in 2015 (5) SCALE 600, in which in the concluding paragraph it is held as follows:-
27
"In view of the above report, it is evident that on the date of death of Susila Devi, her brother-in- law (Devar) Nand Kuamr Sahoo (appellant no.2 before us) was aged fifteen years nine months and twenty-six days, as such, on further considering the law laid down by this Court in Vijay Singh -Vrs- State of Delhi (2012) 8 SCC 763, Vaneet Kumar Gupta @ Dharminder -Vrs- State of Punjab (2009) 17 SCC 587 and Upendra Kumar -Vrs- State of Bihar (2005) 3 Supreme Court Cases 592, we are of the view that the sentence recorded by the Courts below against the Juvenile accused is liable to be quashed. As to the other appellants, in the facts and circumstance of the case, we do not find any reason to reduce the sentence, awarded against them.
Accordingly, the appeal of the appellants Indradev Sao and Raj Kumar Sao is dismissed but that of Nanda Kumar Sao is allowed partly. We affirm the conviction recorded against him but considering that he was juvenile on the date of incident, sentence of imprisonment is quashed. Appellant no.2 Nanda Kishore Sao shall be set at liberty, if not required in connection with any other crime".
If we would have considered the prayer made by the learned counsel for the appellant, in view of the cited decision of the Hon'ble Supreme Court in case of Indradeo Sao (supra), in view of the age of the appellant, we would have affirmed the conviction recorded against him while quashing the sentence of imprisonment. But since we have considered the appeal on merit and after scanning the evidence on record, we found that the prosecution has miserably failed to establish its case against the 28 appellant beyond all reasonable doubt, we are inclined to allow the appeal.
Accordingly, the impugned judgment and order of conviction is set aside. If the accused has already been released from jail custody in pursuance of our orders dated 27.07.2015 in Misc. Case No.28 of 2015 and 09.10.2015 in Misc. Case No.74 of 2015, he is discharged from the liability of his bail bonds. His personal bonds and the surety bonds, if any, stand cancelled. If he has not been released from jail custody, he should be released forthwith if his detention is not required in connection with any other crime.
Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
VINOD PRASAD, J. I agree.
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Orissa High Court, Cuttack Vinod Prasad, J.
The 5th January, 2016/Sisir