Banamali Sahu & Others vs State Of Orissa

D.Dash,J

The Appellants by filing this Appeal has assailed the judgment of conviction and order of sentence dated 12th September, 2022 passed by the learned Additional District & Sessions Judge, Boudh in Sessions Trial No.56 of 2016 (T) arising out of C.T. Case No.536 of 2015 corresponding to Baunsuni P.S. Case No.99 of 2015 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Boudh.

The Appellants (accused persons) thereunder have been convicted for commission of offence under section-302/201/34 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellants (accused persons) have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- each in default to undergo rigorous imprisonment for one (1) year for the offence under section-302 of the IPC. The Appellants (accused persons) have been further sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.5,000/- each in default to undergo rigorous imprisonment for three months for the offence under section-201 of the IPC.

Prosecution Case:-

On 10.11.2015 one Sujit Kumar Sahu (Informant-P.W.22) submitted a written report with the Inspector-In-Charge (IIC) of Baunsuni Police Station stating therein that on that day around 4.40 am early in the morning, his brother Hemanta had been towards the village pond on morning walk. It was stated that during then, some unknown persons having attacked Hemanta by means of axe and bhujali, inflicted bleeding injuries on his person. One Nrusingha Sahu (P.W.3) having seen Hemanta lying on the ground with profuse bleeding rushed home and informed Sujit (Informant-P.W.22) about the same. Thereafter, Sujit (Informant-P.W.22) rushed to the spot and he with the villagers took Hemanta to their house, where he succumbed to the injuries.

It was indicated in the written report (Ext.10) that these accused persons had enmity with Hemanta (deceased) since the year 2004 and he had lodged the F.I.R. against them on earlier occasion for committing the murder of their uncle, Niranjan Sahu. In that case, Hemanta (deceased) was the Informant and looking after the case, had also deposed against the accused persons. So Sujit (Informant-P.W.22) in that report (Ext.10) expressed strong suspicion that it was the accused persons who had committed the crime in intentionally causing the death of his brother Hemanta (deceased).

The IIC, Baunsuni Police Station having received such written report from the Informant (P.W.22) treated the same as F.I.R. and registering the case, took up investigation. The Investigating Officer (I.O.-P.W.32) in course of investigation, examined the Informant (P.W.22) and then visited the spot. There he seized the blood stained and sample earth. She held inquest over the dead body of the deceased in presence of witnesses and prepared report (Ext.9) to that effect. She then issued the requisition for holding postmortem examination over the dead body. She too seized the wearing apparels of the deceased under seizure list and then arrested accused persons. It is stated that the accused persons while in custody stated to have kept the ‘Katara’ in a place known to them and that if they would be taken, would give recovery of the same. The statements of the accused persons being recorded by the I.O. (P.W.32), the accused persons were said to have led P.W.32 and others to the paddy field and gave recovery of the ‘Katara’ stained with blood which was seized by the I.O. (P.W.32). The seized incriminating articles were sent for chemical examination through Court. The I.O. (P.W.32) in view of receipt of order of transfer handed over the Investigation of the case to her successor in Office i.e. P.W.33, who on completion of investigation submitted the Final Form placing all these accused persons to face trial for commission of offence under section-302/201/120-B/109/34 of the IPC.

Learned S.D.J.M., Boudh, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused persons.

In the Trial, the prosecution in total examined thirty three (33) witnesses. Out of them, the important are P.W.2 and P.W.18, who had first seen Hemanta (deceased) lying on the ground in pool of blood, receiving multiple injuries on his person. The three brothers of the deceased are P.W.21, P.W.22 and P.W. 31 and P.W.30 is the wife of the deceased. The witness to the seizure of the weapon, ‘Katara’ said to have been recovered and seized at the instance of the accused persons is P.W.28. The Doctor, who had conducted postmortem examination over the dead body of Hemanta has come to the witness box as P.W.29; whereas two Investigating Officers (I.Os.) are P.Ws. 32 and 33.

The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 32 as stated in detail in the list provided at the foot of the judgment of the Trial Court, which would be referred to in course of discussion to follow as per the numbers assigned to those by the Trial Court.

The accused persons despite the opportunity have however not tendered any evidence in support of their plea of denial and false implication.

The Trial Court in the absence of any eye witnesses to the occurrence projected by the prosecution having found the death of Hemanta to be homicidal in nature by relying upon the evidence of the Doctor (P.W.29) and the postmortem report admitted in evidence and marked Ext.14 and culling out the circumstances emerging from the evidence on record has said that those being cumulatively viewed make the chain of events so complete that an irresistible conclusion stands that it is these accused persons who are perpetrators of the crime and none else. Accordingly, the accused persons have been convicted for the above offences and sentenced as aforestated.

The death of Hemanta to be homicidal was not under challenge before the Trial Court and that has also been the situation before us.

The Doctor (P.W.29), who had conducted autopsy over the dead body of the deceased, has stated to have noticed thirteen (13) nos. of chop and cut injuries of different dimensions all over the body of Hemanta. As per his evidence, the injuries were ante mortem in nature and might have been caused by heavy sharp cutting weapons. He further stated that those injuries were fatal enough in ordinary course of nature and sufficient to cause death. As per his evidence, the death was on account of shock and haemorrhage on account of those cut and chop injuries received by the deceased. All such findings as deposed to by P.W.29 find mention in his report, Ext.14. Such evidence of the Doctor P.W.29, is found to have not been challenged by the defence by directing by cross-examining in that light. In addition to the above, we find that the other witnesses including the brothers and wife of the deceased as stated to have seen the deceased with all such injuries over his body and particularly, the informant (P.W.22) had stated that having gone to the spot and found his brother-Hemanta lying injured, he had brought him to the house where he succumbed to be injuries. The two witnesses who had first seen the deceased lying on the ground and had informed to the Informant (P.W.22) have also stated about the injuries inflicted upon the body of the deceased. In view of the above evidence on record, we are left with no option but to concur with the finding of the Trial Court that Hemanta’s death was homicidal.

Mr. Jugal Kishore Panda, learned Counsel for the Appellants (accused persons) submitted that none of the circumstance noted by the Trial Court is implicating and points at the guilt of the accused persons. He further submitted that those circumstances even if joined do not at all complete the chain of events normally do not lead to draw any inference as to the guilt of these accused persons, much less to say that thereby all the hypothesis other than the guilt of the accused persons are ruled out. In support of the same, having taken us through the circumstances pointed by the Trial Court and referring to the evidence in support of each such circumstance, he has finally contended that the judgment of conviction and order of sentence passed by the Trial Court which are impugned in this Appeal are wholly unsustainable.

Mr. Sonak Mishra, learned Additional Standing Counsel while supporting the finding of the Trial Court as against the accused persons holding that they have intentionally caused the death of Hemanta submitted that the circumstances which emerge from the evidence on record such as the homicidal death of Hemanta, prior enmity of the accused persons with that Hemanta (deceased), accused persons leading the I.O. (P.W.32) and others in giving recovery of Katara, the medical evidence that the injuries noticed by the deceased were possible by that Katara and the seizure of other incriminating materials connecting the accused persons being cumulatively viewed make the chain of events so complete that the irresistible conclusion would stand that in all human probability, it is the accused persons who are responsible for the injuries caused upon the deceased leading to his death.

Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 33. The documents admitted in evidence and marked Exts.1 to 32 from the side of the prosecution have been perused.

Admittedly, the prosecution case is not resting upon direct evidence and in order to establish the charges, the prosecution banks upon the circumstantial evidence.

It is the settled position of law that where the case rests on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon, must be proved individually. However, in applying this principle, a distinction must be made between ‘facts’ called ‘primary’ or ‘basic’ on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be interred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/ are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court.

Bearing the above principle of law in mind, we are now called upon to address the rival submission in judging as to whether the finding of guilt as against the accused persons as has been returned by the Trial Court satisfy the tests laid down so as to hold the field.

As already found by us, the death of Hemanta was homicidal in nature and it has been established to have occurred due to infliction of several cut and chop injuries on his person by means of heavy sharp cutting weapons and thus Hemanta had been done to death.

Now the question comes up as to who is/are the perpetrator (s) of the said crime; in other words author(s) of such injuries leading to the death of Hemanta. The Trial Court in para-10 of its judgment has noted, the circumstances one by one.

The first circumstance is homicidal death of Hemanta on 10.11.2015 morning after having sustained multiple bleeding injuries all over his body. The next circumstance is the seizure of motorcycle whose registered owner is accused Khiranaba Sahu. The motorcycle seized by the I.O. (P.W.32) has been proved through one Rajib Bhokta (P.W.1), on whose evidence, the seizure list, Ext.6/2 has been admitted in evidence and that is also stated by the I.O. (P.W.32). We find that P.W.1 during trial has given a good bye to his previous version. Although the prosecution has cross-examined, this P.W.1 with the permission of the Court, what we find that except drawing attention of this witness to his previous statement that on 10.11.2015 night around 3 am, he having gone to his field for watering with his father had seen accused Banamali and his sons assaulting the deceased by means of bhujali and then had seen the motorcycle to be there which have been stoutly denied; nothing else has been elicited from him in support of the prosecution case. Said P.W.1 in his previous statement had directly implicated the accused persons and also stated that seized motorcycle to be there when he saw the incident has been proved through I.O. (P.W.32). But now when P.W.1 has not supported the case of the prosecution in any manner, his statement before the I.O. (P.W.32) recorded under section-161 of the Cr.P.C. cannot be taken as the substantive evidence except being considered to say that said P.W.1 is suppressing the truth; which does not help the prosecution in the direction of establishment of the charge.

In that situation, merely because on that day of occurrence, the motorcycle belonging to accused-Khiranaba Sahu has been seized that too from the house of one Makhana Bhoi, the same does not stand as an incriminating circumstance pointing at the guilt as accused persons by drawal of any such inference or even that of accused-Khiranaba Sahu. The third circumstance is found to be having no separate identify and our view on the second circumstance pointed out by the Trial Court as above stated provides the same treatment to the third circumstance.

The prosecution has then led evidence as to the recovery of ‘Katara’ (M.O.I) pursuant to the statement of the accused persons in pressing the same into service within ambit of the provision of section-27 of the Evidence Act. Let us now see how far those required facts have been proved.

The I.O. (P.W.32) has deposed that on 14.11.2015, he arrested all the accused persons. It is not stated by him as to whether he arrested all the accused persons from one place or from different places and if so, who from which place. What was the time when he arrested them is not in his evidence. He is also silent as to where he brought them after arrest. This P.W.32 states that after arrest the accused persons, Khiranaba, Banamali and Duryodhan voluntarily gave the statements before him and the witnesses. But then he does not state that who were witnesses present there. He next states that accused Duryodhan gave the statement to have concealed the weapon of offence that is ‘Katara’ in a field near the spot of occurrence, and then he states that said accused Duryodhan told that if they (MEANS ALL THE ACCUSED PERSONS) would be taken to the spot of concealment, they would give recovery of the same. He further states that other two accused persons also stated the same before him. Their statements were recorded in one sheet which he has proved as Ext.13/1. His further evidence is that the accused persons then having led him and witnesses to the spot, accused Duryodhan showed the spot of concealment and gave recovery of the ‘Katara’, which was seized under the seizure list-Ext.12.

P.W.28, the other I.O., who states to have gone to Baunsuni Police Station on 14.11.2015 being called by P.W.32 has stated that the accused persons had disclosed that while absconding from the spot, they had concealed the weapon of offence i.e. Katara in the cultivable land of Himansu Bhagat situated near Bastanpur road. He has further stated that accused Duryodhan told them that if he would be taken to that paddy field/ cultivable land, he would give recovery of the weapon of offence which he had concealed. His evidence is that P.W.32 came to the field led by accused Duryodhan and he (P.W.28) along with Laba Sethi had accompanied and accused Duryodhan went to the paddy field and brought out the weapon of offence from that paddy field. He does not even state as to what was the type of that weapon. The version has been that “weapon of offence”, which is too generic. No other independent has come forward to speak about these facts. We therefore find that the evidence of P.W.28 and 32 are wholly unsatisfactory to arrive at a conclusion that the accused persons had stated before the I.O. (P.W.32) in presence of the witnesses that they had kept the Katara, recovery of which they would give if were taken to the place where they had kept the same and that they or any of them had taken this I.O. (P.W.32) to the place and give the recovery of ‘Katara’.

The last circumstance is the detection of human blood of Group-B on the wearing apparels of the decease, Katara and detection of human blood on helmet, seized with the motorcycle. At the risk that we may commit mistake, truly speaking, we are not in a position to understand as to how this can stand as an incriminating circumstance against these accused persons. Now when we accept that the accused persons were bearing grudge against the deceased and thereby had the motive, that itself would not be enough to conclude that in all human probability, it is the accused persons who had committed the murder of Hemanta and none else.

In that view of the matter, the finding of the Trial Court holding the accused persons guilty for commission of the offence under section-302/201/34 of the IPC cannot be sustained. Therefore, we hold that the judgment of conviction and the order of sentence impugned in this Appeal are liable to be set aside.

In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 12th September, 2022 passed by the learned Additional District & Sessions Judge, Boudh in Sessions Trial No.56 of 2016 (T) are hereby set aside.

Since the Appellants (accused persons) namely, Banamali Sahu Duryodhan Sahu and Khirannaba Sahu are in custody, they be set at liberty forthwith, if their detention in custody are not so required in connection with any other case.

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